Do the increased responsibilities inherent in the perioperative surgical home (PSH) model mean that anesthesiologists are necessarily increasing their legal vulnerabilities?
Although the advent of the PSH concept has been a boon for many anesthesiologists looking to expand the scope of their responsibilities and cement their position in this innovative medical care model, these impending changes pose several potentially unforeseen challenges. The good news—as experienced attorneys in both arenas discussed withAnesthesiology News—is that safe migration into the PSH model is possible and a function of vigilance, preparation and communication.
Proposed several years ago by the American Society of Anesthesiologists (ASA), the PSH is an anesthesiologist-led practice model geared toward improving the quality, safety and cost of patient care. Currently, most patients work their way through distinct episodes of the perioperative process, including preoperative, intraoperative, postoperative and post-discharge care. The PSH, on the other hand, treats the entire perioperative experience as a single continuum, with the anesthesiologist coordinating and managing all aspects of care.
Professional Liability Will Change
“The PSH certainly represents an expanding role for anesthesiologists,” commented Wade Willard, JD, vice president of claims at Preferred Physicians Medical, an Overland Park, Kan.–based company that provides professional liability insurance to anesthesiologists. “And I think insurance companies will eventually need to adjust their underwriting to reflect this changing role and the potential losses that may follow.”
While the specter of medical malpractice may be very real, it’s certainly no reason to shy away from what may be a terrific opportunity, according to Mark Weiss, JD, the principal of the Mark F. Weiss Law Firm in Los Angeles.
“I think malpractice is a nonissue with respect to the PSH,” said Mr. Weiss. “It’s a nonissue because every single time a physician has an interaction with a patient, there’s a chance of being sued for malpractice.
“Assuming there is a way to make money and run a profitable practice being the point person of the PSH, then why wouldn’t an anesthesiologist want to do it?” Mr. Weiss asked.
The way Mr. Weiss sees it, there are three primary medical malpractice risks for anesthesiologists working within the PSH. First, they may be sued because of an allegation with respect to care they delivered personally. Second, anesthesiologists have a vicarious risk in that they belong to a profitable group, and if one member of the group gets sued, everyone is affected.
Finally, there’s the notion of what Mr. Weiss calls the “negligent referral—you were in charge, and as the point person in the perioperative process, you brought in someone who wasn’t competent,” he said. “Or you should have brought in someone and you didn’t.”
And while this may all seem like more exposure than today’s anesthesiologist is comfortable with, it is no reason to shy away from what otherwise might be a terrific opportunity. “That’s why you have malpractice insurance,” Mr. Weiss said.
Yet as Mr. Willard explained, evolving responsibilities sometimes mean evolving insurance policies. “Anytime a specialty gets into an area that maybe they’re not normally exposed to, we’re always careful to remind them that this may represent a broader scope of practice and they need to adjust their approach to reflect this larger responsibility,” he explained. “You just can’t have the singular lens of anesthesiologists doing what they’ve always done.”
The answer, then, is communication between practitioners and the companies that insure them. “Anesthesiologists who are now in this role had better be sure that their malpractice policy describes these new activities as part of the practice of anesthesiology,” Mr. Weiss said. “So you need to have a discussion with your insurance company to make them aware of what you’re doing. Because some policies will have exclusions, you want to make sure that what you’re doing doesn’t fall within an exclusion. In the end, you don’t want someone to say, ‘We thought you were an anesthesiologist but you weren’t being an anesthesiologist that day, so we’re not insuring you.’ You don’t want that to happen.”
The Key: Communication
Yet practitioners are not the only players who need to re-examine their exposure in this new game. As Mr. Willard pointed out, insurance companies also will need to determine their needs from an underwriting perspective. The good news, he said, is that changes such as these are evolutionary rather than revolutionary. “It’s not like tomorrow all anesthesiologists are going to be practicing in the PSH model,” he said. “It will likely start more in the academic institutions and work its way out. And during that time, insurance companies, anesthesiologists and the societies are all going to have a chance to look at how it’s working.”
Nonetheless, Mr. Willard offered his own advice for anesthesiologists who see themselves migrating to the PSH care model. “From a risk management perspective, it goes back to recognizing your changing role, making sure you feel comfortable in that role and determining if you need any additional training,” he said. “The second part is from the insurance perspective. Companies want to be aware of, and have a discussion with, the practitioners that are going to be taking on the PSH role, especially these initial ones. It won’t necessarily change our relationship with them; we just want to be aware of it.”
In the end, neither Mr. Weiss nor Mr. Willard believe that fear should prevent otherwise keen anesthesiologists from performing responsibilities associated with the PSH. “I think the PSH is a way for anesthesiologists to make themselves more relevant and cement their place in the perioperative process,” Mr. Willard said.