The Looming Threat of Liability for Accountable Care Organizations and What to Do About It

By H. Benjamin Harvey, MD, JD; I. Glenn Cohen, JD
JAMA, June 17, 2013

Hundreds of health systems across the country have already adopted the ACO model (accountable care organization) 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.

Unlike MCOs (managed care organizations), ACOs will generally not have the benefit of ERISA, which does not cover them; nor are they slated to get comparable federal liability protections. As a result, ACO cost-containment efforts may be scrutinized by the court when poor patient outcomes result in malpractice litigation. For example, if a poor outcome occurs in a patient with congestive heart failure (CHF), a plaintiff could challenge an ACO’s more stringent CHF hospital admissions criteria, asserting a prioritization of cost savings over patient care. In the absence of a federal law that could offer protection, this medical liability claim would be judged by state-based standards, which do not consider federal cost containment goals when determining whether a medical decision was appropriate. Based on MCO liability case law, state courts may hold ACOs liable in this situation.

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.

Allegations of institutional malfeasance related to cost-saving efforts could increase liability costs and create a chilling effect on ACOs. Moreover, these suits need not progress to trial to threaten ACOs. The assertion of institutional malfeasance alone adds strength to a lawsuit and introduces the potential for punitive damages. This could increase jury awards and settlement amounts. In addition, the broader nature of the claims will enable more robust discovery beyond the care received by the patient. Discovery could now reach into the corporate boardroom as a plaintiff attempts to show that institutional policies regarding resource utilization or physician compensation stifled appropriate treatment. For the ACO, this increased complexity means greater defense costs and increased pressure to settle. Beyond cost increases from more garden-variety medical malpractice cases, ACOs also could be exposed to new theories of liability. It is possible to envision a class action suit seeking injunctive relief or damages against institutional policies felt to be potentially harmful to patients, such as physician incentives payments.

The primary purpose of accountable care organizations is to reduce health care spending. By participating in these schemes – accepting financial rewards for reducing care – physicians are exposing themselves not only to malpractice claims for negligence through failure to provide adequate health care services, but they are also exposing themselves to punitive damages for participating in institutional malfeasance related to cost-saving efforts. Surely during the trials the plaintiffs’ attorneys will let slip out the “G” word – GREED!

Greed: The secret word a la Groucho Marx (15 seconds):

Single payer saves money by reducing waste and improving resource allocation. It does not do it by paying physicians incentives for reducing health care. Most physicians surely would want to avoid even the least semblance of greed.