Like many consumer advocates, “fine print” is something we (unfortunately) must discuss quite a bit. (For example, here, here.) “Fine print” contracts usually include “forced arbitration clauses” that say you can’t go to court against a company that breaks the law and cheats you. There’s even a film about this problem, called Lost in the Fine Print. But we forget that companies aren’t the only ones who try to strip away rights “in the fine print.” Politicians do it too – in bills.
Take the House-passed “doc fix” package dealing with Medicare reimbursement rates. Buried in the fine print of this very large bill is a provision that “protects doctors by stipulating that the quality-of-care standards used in federal health programs — Medicare, Medicaid and the Affordable Care Act — cannot be used in malpractice cases.” Writes the New York Times,
[T]om Baker, a professor and an expert on insurance law at the University of Pennsylvania, said the provision of the bill barring lawsuits based on federal guidelines “does not make any sense.”
“Why wouldn’t you want to take these guidelines into consideration?” Mr. Baker asked. “They indicate what a reasonable doctor does and should do, just like guidelines adopted by a medical specialty society.”
But the impact is even more serious than that.
Kelly Bagby, a lawyer at AARP, the lobby for older Americans, said the malpractice provision was “very troubling.” The National Consumer Voice for Quality Long-Term Care, a consumer group, said the provision would make it more difficult for nursing home residents to vindicate their rights and to establish negligence by showing that a home had violated federal health and safety standards.
James L. Wilkes II, a Florida plaintiffs’ lawyer, said he often used inspection reports showing violations of federal standards in lawsuits against nursing homes and their medical directors. When a nursing home violates federal standards and a resident is injured, Mr. Wilkes said, the patient should be allowed to cite the violation in court, to help demonstrate that the institution did not meet its “duty of care.”…
The American Medical Association has mobilized a campaign to secure passage of the Medicare bill, including the section on medical malpractice. President Obama has endorsed the bill.
See more here. If this bill passes, patients will be unable to use any kind of federal standard to establish negligence. In the case of nursing homes, the only "standard of care" that really exists in many states is federal. What's more, in any kind of medical malpractice case, it appears that nothing will prevent a hospital, clinic (like the one that killed Joan Rivers) or nursing home from showing adherence to such a standard as a malpractice defense. This raises fundamental issues of fairness - but also constitutionality. As an Agency for Healthcare Research and Quality article put it:
Giving providers assurance that guidelines can be used only in their favor may be an important step toward gaining their support; but allowing such one-sided use of evidence in a court of law raises disturbing questions of fairness and of validity under the U.S. Constitution's Fifth and Fourteenth Amendments' due process and equal protection mandates, and under state constitutional principles as well.
This is a small provision in a very large bill and may seem impossible to get out - it's up to the Senate now. But you never know! Take what just happened in New York State.
Buried in the fine print of Governor Cuomo’s massive New York State budget bill - proposed in February - was a line that would have eliminated all funding for the New York physician profile website. (See our earlier coverage here .) With all of its flaws, this website is still considered one of the best in the country in terms of informing patients about doctors’ qualifications including malpractice records. After an outcry by consumer advocates and patient safety groups, the governor reversed course and restored funding. Wrote one paper today:
The state budget deal restores funding for a website that provides details about New York doctors' medical malpractice records and other background information.
Gov. Andrew Cuomo had proposed eliminating the website to save the state about $1.2 million annually. Cuomo's proposal angered consumer and patient safety advocates who say the website is an important tool that helps New Yorkers choose doctors.
Blair Horner of the New York Public Interest Research Group said funding is fully restored for the New York State Physician Profile website as part of the budget deal announced Sunday night.
"We are hoping now that this debate happened, lawmakers will be spurred to upgrade the program," Horner said. "The key thing is the program will survive."
In fact, we understand that the website may now add tighter deadlines for reporting information and other improvements. Another fine print miracle!