Affordable Care Act and Medical Malpractice

The Affordable Care Act (ACA), also known colloquially as “Obamacare,” was a landmark piece of legislation that changed how millions of Americans obtained healthcare. By creating government-run health insurance marketplaces and then requiring people to have health insurance or face a tax penalty, the ACA directly resulted in millions of Americans getting access to health care. However, by radically changing health insurance, the ACA caused ripple effects in how healthcare works in the U.S. This has also
changed important aspects of medical malpractice in Maryland and elsewhere.

The Affordable Care Act

The ACA was enacted by the U.S. Congress in late 2009 and early 2010 and was signed by then-President Obama on March 23, 2010. The main pieces of the ACA, however, did not go into effect until 2014.

Even though the ACA was created by Democrats and has been criticized for being overly complex, the core nugget of the law is simple and very conservative: create a tax penalty for anyone who did not get health insurance. This idea, the individual mandate, had been proposed in 1989 by the conservative think tank the Heritage Foundation as an alternative to universal, single-payer healthcare.

However, this was a problem for some people who were uninsured and had a preexisting condition, because insurance companies would refuse to cover them. To account for this, the ACA provided subsidies for insurance companies to provide coverage for these potentially risky people.

Using the individual mandate and these subsidies, the ACA has resulted in an estimated 22 million Americans receiving health insurance.

Impact of the ACA on the Business of Healthcare

The ACA has had a lot of impact on how healthcare gets performed in the U.S. One of these changes was to the business model that healthcare providers used. Before the ACA, it was both feasible and lucrative for doctors to stay independent and organize in small clinics and offices. After the ACA, this was not as lucrative. Many independent clinics sold out to larger health institutions and hospitals, in large part because the healthcare model used by these larger institutions – the accountable care organization – was more efficient. Under the accountable care organization model, individual doctors focus on functions in the healthcare process, rather than on patients. From a doctor's point of view, this means they do substantially the same thing every day, allowing them to specialize more easily.

However, from a patient's perspective, the accountable care organization means there is little “continuity of care,” where a patient sees the same doctor for all of their maladies and for the entire process of fixing one of those maladies. Instead of seeing and building a rapport with a doctor, patients are more likely to see several doctors over the course of a single diagnosis, treatment, and recovery.

The accountable care organization has been one of the aspects of the ACA that has had an impact on medical malpractice in the U.S.

The ACA and Medical Malpractice

The actual text of the ACA is almost entirely silent on the issue of medical malpractice. However, it has still played a huge part in how medical malpractice has evolved in the years since it passed.

The only part of the ACA that directly says anything about medical malpractice is §10607, which allows the Secretary of Health and Human Services to provide grant money to state governments to develop, implement, and evaluate ways of handling the issue.

Despite the lack of input in the ACA on medical malpractice, healthcare policy experts have predicted that the law has played a huge role in changing the malpractice landscape in significant ways.

For starters, by providing health insurance to millions of people in America, more people have access to healthcare. With the increase in volume, healthcare experts have predicted that there would also be an increase in the number of malpractice claims, simply because more services are being provided.

Compounding this increase in malpractice claims has been the movement towards the accountable care organization. One of the things that had kept malpractice claims down was the personal relationship that many people had with their doctors. This emotional affinity with their physician was often the thing that made victims decide not to pursue a malpractice claim. The ACA, however, moved healthcare away from a business model that allowed those close doctor/patient relationships, making it more likely for innocent victims to enforce their rights to compensation in court in a malpractice claim.

Despite these increases, the ACA has been found to not have much of an impact on the costs of malpractice insurance for healthcare providers, keeping down the price of care.

The ACA and Defensive Medicine

One of the things that the ACA aimed to do was decrease the costs of getting medical care. One reason why the cost of care was so high was the tendency for doctors to practice “defensive medicine” – ordering tests and procedures that were unlikely to be necessary and which could even harm the patient, simply to cover all of their bases and avoid a potential malpractice lawsuit. However, the ACA does not seem to have made much of an impact on defensive medicine, as doctors remain worried about a lawsuit and so keep running tests “just to be sure.”

Future of the ACA

Because the ACA was the signature piece of legislation by a prominent Democrat, the Republican Party has continually tried repealing it. Now that they have control over both chambers of Congress and the White House, Republicans have moved in full force to completely dismantle the ACA, or to at least hamstring its effectiveness. One of the things these Republicans care most about in healthcare, and so are most likely to include on any bill dealing with the ACA, is so-called “tort reform.” Tort reform aims to cap the maximum amount that can be recovered in a malpractice claim, regardless of how badly the victim has been hurt, despite the evidence that it might actually make healthcare more expensive.

Maryland Medical Malpractice Attorneys at Gilman & Bedigian

If you or a loved one has been hurt by a doctor or during a medical procedure, it may have been medical malpractice. Contact Gilman & Bedigian online or call us at (800) 529-6162 for a free consultation.

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