The Journal of the American Medical Association (JAMA) has just posted online (ahead of print) a new article by Ben Harvey and I entitled “The Looming Threat of Liability for Accountable Care Organizations and What to Do About It.” We discuss the Accountable Care Organizations (ACOs) that that the Affordable Care Act seeks to incentivize, the malpractice and other liability claims they may, and how the lack of an Employee Retirement Income Security Act (ERISA) shield of the kind enjoyed by Managed Care Organizations will impact the liability environment ACOs will face. We also discuss self-help remedies available to ACOs as well as potential congressional intervention to deal with these issues.
New JAMA paper “The Looming Threat of Liability for Accountable Care Organizations and What to Do About It”
I. Glenn Cohen
I. Glenn Cohen is the James A. Attwood and Leslie Williams Professor of Law at Harvard Law School and current Faculty Director of the Petrie-Flom Center. A member of the inaugural cohort of Petrie-Flom Academic Fellows, Glenn was appointed to the Harvard Law School faculty in 2008. Glenn is one of the world's leading experts on the intersection of bioethics (sometimes also called "medical ethics") and the law, as well as health law. He also teaches civil procedure. From Seoul to Krakow to Vancouver, Glenn has spoken at legal, medical, and industry conferences around the world and his work has appeared in or been covered on PBS, NPR, ABC, CNN, MSNBC, Mother Jones, the New York Times, the New Republic, the Boston Globe, and several other media venues. He was the youngest professor on the faculty at Harvard Law School (tenured or untenured) both when he joined the faculty in 2008 (at age 29) and when he was tenured as a full professor in 2013 (at age 34).
I wanted to comment on this passage from the excellent article:
“One such approach would be to establish safe harbors in the form of best practices relating to compensation structures and the use of evidence-based medicine. ACOs that meet those safe harbor requirements would receive protection from state tort law claims in these areas.”
Generally, its hard to imagine how an ACO could be found negligent when doing best practices and EBM. So unless that immunity reduces transaction costs, e.g., by getting an earlier dismissal, then I’m not sure what it would accomplish. Perhaps it is really intended just to be a shift away from jury decisionmaking.