Aaron’s post on the professional liability risks of ACOs seemed a little bleak. My perspective:
- Liability risks rightly fall on whomever makes the decisions. Responsibility follows authority.
- Hospitals typically deny liability related to a non-employed doc, claiming they don’t control them (the doc is not the “agent” of the hospital).
- For hospital-employed docs, without a doubt the hospital is also at risk. Employers always are responsible for the torts of their employees committed within the scope of employment.
- If an ACO is coordinating care and making medical decisions, of course they may be liable.
- No additional cases of malpractice are created; the “agency” rule just adds an additional defendant, the ACO.
- The ERISA shield was an accident, not real policy. It inappropriately protected some HMOs who were controlling aspects of medical care in the 1990s. The PPACA finally enacted many provisions from the Patients Bill of Rights from that time.