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The federal Government Accountability Office (GAO - formerly, General Accounting Office) has for several years been examining the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) to determine 1) the extent to which its pre-2004 hospital accreditation process identified hospitals not complying with Medicare requirements; 2) the potential of JCAHO's new (post-2004) process for improving the detection of deficiencies in Medicare requirements; and 3) the effectiveness of the Centers for Medicare and Medicaid Services' (CMS) oversight of JCAHO's hospital accreditation program. A report detailing the findings of that study, "Medicare: CMS Needs Additional Authority to Adequately Oversee Patient Safety in Hospitals," GAO-04-850, published July 20, levels some serious charges against JCAHO.
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Recent rulings of interest to you and your practice.
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Over the past year, with the medical malpractice crisis growing to encompass an ever-increasing number of states, physicians have wanted to implement strategies to force the issues out in the open and stimulate reforms. One strategy, which many physicians considered and far fewer implemented, was conducting some form of work stoppage. The concept of a work stoppage has generated a great deal of debate among physicians, medical societies, attorneys, law enforcement officials and legislators, both on legal and ethical grounds. What is the effect of antitrust law on these movements, and how can the outcomes of prior antitrust cases help to frame the legal debate concerning a physician work stoppage? If you have physician clients who are contemplating such actions as part of their efforts toward tort reform, what should you advise them?
In last month's newsletter, we noted the dearth of significant case law with respect to the Health Insurance Portability and Accountability Act, Pub. L. No. 104-191, 110 Stat. 1936 (1996) (HIPAA), save for three cases. In the first installment of this article, we looked at the case of <i>Northwestern Memorial Hospital v. Ashcroft</i>, 2004 U.S. App. LEXIS 5724 (7th Cir. 2004), in which the U.S. Court of Appeals for the Seventh Circuit rejected the notion that HIPAA created a new federal privilege regarding abortion medical records. That court ultimately quashed the subpoena that would have required the hospital to turn over to the U.S. government the abortion records sought, but on different grounds.
America is in a health care crisis -- a "perfect storm" of needless errors, unaffordable cost increases, declining access, inadequate accountability, and fearful and frustrated professionals. Some of the problems are unavoidable. No one can change, for instance, the fact that the baby boom population needs more health care as it ages. But our legal system is part of the problem, too: It imposes needless costs, deters safety improvements, and fosters widespread distrust among medical professionals. Changing the way medical malpractice lawsuits are decided would go a long way to improving health care for patients and providers alike.
<b><i>Part One of a Three-Part Article</i></b>. Since its enactment, with perhaps only three significant exceptions, the provisions of the Health Insurance Portability and Accountability Act, Pub. L. No. 104-191, 110 Stat. 1936 (1996) (HIPAA) have not been litigated. In the majority of cases where HIPAA has been the subject of litigation -- less than 50 -- litigants have raised HIPAA provisions as an issue, but only tangentially as part of a "throw away" argument, or in a meaningful manner but where the answer was immediately clear from the case's inception. Three federal cases, however, merit analysis, since they go to the heart of HIPAA, the government's broad attempt to safeguard medical records in the electronic age.
Communicating complicated medical information precisely and simply can make or break a legal case, but imparting this information in a compelling way is no easy task. Descriptions of complex medical procedures and conditions can be difficult for the average person to understand, let alone remember. Advances over the last decade in computer processing of medical images and rapid manufacturing techniques can provide the basis for an important development in medical-legal communication.
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The Orthopedic Specialty Group, a 12-member group of physicians practicing in Connecticut, notified that state's trial lawyers in May that its members would no longer appear at depositions for the fees they'd charged in the past. This move, they said, was made in response to soaring malpractice insurance rates.