Reference no: EM133395271
Assignment:
Judges and academics have written about the diffusion of new medical technologies and standards of practice through social and cultural forces aided by medical specialty societies- a slow evolutionary process. The effect of the cumulative ACA requirements - with money allocated for research on practice guidelines, best practices and outcome measures -will be to accelerate the diffusion of these new standards for best practice. First, federal research dollars under the American Recovery and Reinvestment Act of 2009 are supporting research to analyze the practice-outcome linkage and what best practices should be.
Second, the ACA mandates dissemination in a variety of ways, including websites, pay-for-performance reforms, and models of integrated practice. New payment reforms in particular will tie physician performance to these measures, particularly in ACOs, medical homes, and other new integrated modes of practice. Best practices, grounded in research and made accessible and transparent to providers, patients, and payers, will start to squeeze out medical practice variation in clinical practice. The tort effect of such narrowing of practice is clear: defenses under liability rules will rapidly narrow as practice choices also narrow. The physician who doesn't keep up with new research will not only suffer income loss; she will also suffer a higher risk of liability for failing to conform to what becomes the new standard of care.
QUESTIONS:
How will such practice guidelines and best practices be used in a malpractice suit? The section of the ACA that creates the Patient-Centered Outcomes Research Institute specifies that its findings must be rapidly disseminated to clinicians, presumably so that they can adopt them. However, Section 1181 (8)(A) (iv) specifies that such research findings shall ".. .. not be construed as mandates for practice guidelines, coverage recommendations, payment, or policy recommendations...'
How do you interpret this language? Does it mean only that dissemination is not a command to clinicians? Or that plaintiff lawyers cannot use the findings as evidence of a standard of care? Surely they can be some evidence of such a standard, and very powerful evidence at that. As a constitutional matter, could Congress limit the way state courts use the guidelines and data developed as a result of the ACA in state tort actions?