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Will Washington cancel coverage for millions of patients and unleash a tidal wave of litigation on the U.S. healthcare system? I challenge leaders in healthcare and government to address this question.

Not a day goes by that we don’t read something about the effort to repeal and/or replace the Affordable Care Act. In May of this year, the House of Representatives narrowly passed H.R. 1628—the American Health Care Act of 2017. In late June and July, the Senate leadership renamed the amended House bill as the Better Care Reconciliation Act of 2017. They continue to wrestle with various permutations but the ultimate outcome remains very much in doubt.

Politics aside, what matters most to me is what I am not hearing. Amidst all the conversation on this topic, I have heard no details about a specific, well-thought-out policy that would preserve access to care and protect the healthcare system from what could become a litigation nightmare.

Importantly, any legislation—whether it is “repeal and replace” or “repeal then replace”—must address the potential for patient abandonment.


Patient abandonment

If the scoring from the Congressional Budget Office on the House-passed American Health Care Act is correct and millions of patients lose their health insurance, many patients won’t be able to pay for continued care. For those who are actively receiving treatment (think diabetes, pregnancy, cancer, coronary artery disease, stroke), individual physicians would be faced with an impossible choice: To continue treatment in a setting where medications, imaging studies, hospitalization, and consultant care are not available, or face a legal and ethical quagmire of patient abandonment. The predicates for this charge are well established:

  1. The doctor-patient relationship is established.
  2. The patient still needs medical attention but is unable to find a suitable alternative.
  3. Injury, or worse, results.

Litigation is almost certain to ensue. And “the patient could not pay” is rarely, if ever, a successful defense strategy.

If tens of millions of people lose coverage, it is not difficult to imagine that tens of thousands of them will find themselves in this situation. We could see then a tidal wave of malpractice litigation visited upon America’s physicians. The statistics on medical malpractice are staggering as it is. The average physician already spends nearly 11% of his or her career consumed in defense of an open malpractice claim. And 80% of those claims closed with no payment to the plaintiff.

Physicians experience additional stress, work, and reputational damage from the time spent defending claims. Fighting claims takes time away from practicing medicine and from the opportunity for the physician to learn from his or her medical errors. The lengthy time required to resolve claims also negatively impacts patients and their families. The last thing we need is a policy paradigm that risks increasing the rate of futile malpractice claims.

It makes me wonder: Is that what the Congress and the President want? I hope not. But that begs a set of follow-up questions: Why is this issue not being openly discussed? Where is the voice of organized medicine? Why aren’t state and national medical societies drawing attention to this problem? This isn’t a political issue; it is a far more serious matter with grave personal and legal consequences. In the extreme, it is a matter of life and death that doctors must think about every day.


Protecting the doctor-patient relationship

There is much to improve in the healthcare system—but as thoughtful professionals, we should insist on protecting what is right. And to that end, every physician should want a system that places the integrity of the doctor-patient relationship at the core. That is where excellent care happens and that relationship—the very wellspring of patient-centered care—must have primacy in any reform plan. It is the source of the quality of care that everyone wants.

No one wants to contemplate the abrupt termination of a patient who desperately needs care. And whether or not the estimate by the Congressional Budget Office is correct, physicians simply cannot tolerate uncertainty with such serious consequences.
Doctors and their patients need to see that this issue is addressed. The question is the same for both our members of Congress and the leaders of organized medicine:

“What is being done to prevent patient abandonment in any reform, repeal, or replace program?”

It is an issue that cannot be left to chance.

This post was sponsored by The Doctors Company, the nation’s largest physician-owned medical malpractice insurer.

Richard E. Anderson, MD, FACP
Richard E. Anderson, MD, FACP, is Chairman and CEO of The Doctors Company, the nation’s largest physician-owned medical malpractice insurer. Dr. Anderson was a clinical professor of medicine at the University of California, San Diego, and was the chairman of the Department of Medicine at Scripps Memorial Hospital, where he served as Senior Oncologist for 18 years. Dr. Anderson is the editor of a book, Medical Malpractice: A Physician’s Sourcebook, and the author of a number of peer-reviewed publications on medical malpractice, the Harvard Medical Practice Study, and the impact of defensive medicine. Dr. Anderson currently serves on the Board of Overseers of the RAND Institute for Civil Justice, the Board of Directors of the PIAA, the Board of Governors of the National Patient Safety Foundation, and the Board of Directors of Californians Allied for Patient Protection. After graduating from Stanford Medical School, Dr. Anderson did his internship and residency at Harvard Medical School’s Beth Israel Hospital, followed by his postdoctoral fellowship in medical oncology at Stanford.


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