Stuff like this makes me despair for cost containment at all

A new Viewpoint in JAMA, “The Looming Threat of Liability for Accountable Care Organizations and What to Do About It“:

The promotion of accountable care organizations (ACOs), a new health care delivery and payment model designed to curb rising medical costs while improving quality, is one of the most important elements of the Affordable Care Act. The ACO model is based on shared-risk contracts, in which ACOs agree to share the financial risk of health care overspending with third-party payers. Although they originate in Medicare, these shared-risk arrangements are quickly spreading to the private insurance markets, where they aim to dismantle the volume-driven fee-for-service revenue model. Hundreds of health systems across the country have already adopted the ACO model and in so doing have taken on a new role of cost containment. What may be less clear to them is that they are taking on new liability risks.

To be honest, I don’t know what to make of this. The piece is constructed around the idea that ACOs put docs at risk for lawsuits because if something goes wrong, they could be held liable for trying to cut corners at the expense of care:

Under “agency theory” in tort law, a plaintiff in a malpractice suit is permitted to hold a health system liable for the negligent actions of its employee, ie, the treating clinician. A patient may also sue a health system directly, claiming that policies or actions of the health system are negligent. Thus, whether ACOs or not, health systems are exposed to institutional liability related to medical malpractice. How big of a divergence is ACO liability from the existing forms of institutional liability common to health systems? The key difference is the introduction of a new dimension of medical malpractice liability that goes hand in hand with the cost containment charge: the claim that the ACO’s actions or policies prioritized cost savings over patient safety, contributing to the plaintiff’s harm.

The problem is that – as far as I can tell – this prohibits us from ever taking any instutitonal steps to try and contain costs at all. I’m not a lawyer; am I missing something? If you really believe this, then there’s really nothing we can do to try and spend less. Just order everything for everybody every time.


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