Accountability

An Overview
 Accountability in Health Care
• Who can be held accountable (loci of accountability)?
• For which types of activities can parties be held accountable (domains of accountability)?
• Professional competence
• Legal and ethical conduct
• Financial performance
• Adequacy of access
• Public health promotion
• Community benefit
• What are the procedures of accountability?
• Models of accountability
• Professional model
• Economic model
• Political model
 Regulating Providers
• Professional model
• Facility oversight
• Medical staff bylaws
• Private (professional colleague) oversight
• Nongovernmental and quasi-governmental organizations (Joint
Commission)
• Specialty certification
• Governmental oversight
 Regulating Providers (cont.)
• Economic model
• Consumers
• Insurance networks
• Relies on market to function perfectly
• Marketplace regulator (governmental oversight)
• Nongovernmental and quasi-governmental organizations (NCQA)
• Political model
• Patient cooperatives; community-controlled health centers
• Government intervention
 Private
Patient
Government payers

• Professional competence
• Legal and ethical conduct
• Adequacy of access • All six domains • Professional competence
• Financial performance

Lawyers • Professional competence

• Professional competence
and • Legal and ethical conduct Physician Employers
• Financial performance
courts • Adequacy of access

• Professional competence
• Legal and ethical conduct
• Financial performance
• Adequacy of access
• Public health promotion

Professional • Professional competence • Professional competence

• Legal and ethical conduct • Legal and ethical conduct Investors
associations
• Financial performance • Financial performance

Hospitals Managed
care plans
 Accountability
• Contractual relationships
• Tort law
• Civil responsibility imposed by law for harm done to another
• Damages (economic, noneconomic, punitive)
• Regulated and defined by states
• Physicians
• Nurses
• Allied health
• Hospital liability
• Vicarious
• Corporate
• Insurer and managed care organization liability
Professional Relationships
 Contracts
• What is a contract?
• A voluntary agreement
• Written or oral
• Legally binds two or more parties (if one party does not perform
their obligations under the contract, there is a legal remedy for
other parties to the contract)
• Why have a contract?
• Specify, limit, and define the agreements that are legally
enforceable
 Contract Elements
• Offer/communication
• A promise by one party to do or not to do something if the other party
agrees to do or not to do something
• Consideration
• Each party gives up something of value in exchange for something of value
• Acceptance
• Meeting of the minds
• Definite and complete
• Duration
• Complete and conforming
• Contract breach
 Corporate Contracts
• Ability of a corporation to enter into a contract is limited by powers
described in articles of incorporation (charter) or provided under
general [state] corporation law
• Contractual authority
• CEO
• Governing body
• Third party
• Physician contracts
• Physician groups and specialty contracts
• Direct employment
• Partnerships
 Labor and Employment Issues
Employment contracts
• Breach by employee
• Geographic limitations on practice
• No express agreements
• Restrictive covenants
• Enforceable
• Unenforceable
• Employee handbooks
• Contract?
• Not a contract?
 Health Care Contracts
• Medical staff bylaws
• Hospital staff privileges
• Transfer agreements
• Insurance contracts
Corporations and Corporate Liability
Part I
 What Is a Corporation?
• “An artificial being, invisible, intangible, and existing only
in contemplation of law. Being the mere creature of the
law, it possesses only those properties which the charter
confers on it, either expressly or as incidental to its very
existence.” Tovar v. Paxton Memorial Hospital (1975)
• A person, but not a citizen
• Elements
• Articles of incorporation
• Corporate charter
• Corporate bylaws
 Why Incorporate?
• Perpetual existence
• Free transfer of ownership interests
• Taxation separate from individual income taxes
• Ability to raise capital
• Limited liability
Corporations and Corporate Liability
Part II
 Enterprise Liability
• Need to hold facilities liable for negligence that occurs
inside their walls
• Corporate structures
• Vicarious liability (“agency” relationship—MD employees)
• Independent contractors (actual agency, apparent agency,
nondelegable duty)
• Hospital-based physicians vs. attending physicians
• Corporate (institutional) liability—institutional acts and
omissions
 Contractual Nonperformance
• Defenses • Remedies
• Fraud • Specified performance
• Mistakes of fact or law • Monetary damages
• Duress • General and consequential
• Illegal contract damages
• Impossibility to perform • Duty to mitigate damages
• Statute of limitations • Arbitration
Torts, Professional Liability,
and the Standard of Care
 Criminal vs. Civil Law
Criminal law Civil law
• Plaintiff is the state • Plaintiff is private party
(e.g., State v. Doe) (e.g., Doe v. Roe)
• Guilty or not guilty • Liable or not liable
• Guilty verdict results in • Liability results in paying
prison sentence damages (i.e., money)
• Prosecution must prove guilt • Plaintiff only needs a
beyond a reasonable doubt preponderance of evidence
(i.e., 51% or more)
 Torts
Black’s Law Dictionary:
• A civil wrong for which a remedy
may be obtained, usually in the
form of damages…
 Types of Torts
Three broad categories of torts:
1. Negligent: torts that are caused by the negligence of
the person who commits the tort
2. Intentional: torts caused intentionally
3. Strict liability: torts where the law has determined that
some activities are so dangerous that an individual
engaging in those activities is liable for damages
regardless of intent or negligence resulting in harm
 Negligence
• A failure to use reasonable care, resulting in damage or
injury to another
• Four elements:
1. Duty owed (standard of care)
2. Duty breached
3. Breach—injury (causation)
• Causation in fact (“but-for”)
• Proximate cause (multiple theories)
4. Damages occurred (monetary)
 Duties in Health Care
• Duty of care
• Standard of care?
• Locality rule
• Professional custom
• Physicians: duty to warn
• Nurses
• Duty to question discharge
• Duty to report physician negligence
• Allied health
 Intentional Torts
Criminal and/or civil liability
• Assault and battery
• Fraud
• Invasion of privacy
• Infliction of emotional distress
• False imprisonment
• Character defamation
• Products liability
 Medical Malpractice
• A tort
• An intentional or wrongful act that injures a patient
• Engages in negligence or an act that deviates from the
accepted standards of care
• Risk reduction
• Tort (malpractice) reform: a 30-year debate
• Limits on malpractice awards (economic and noneconomic)
• Changes in liability insurance
 Criminal Law and Health Care
• Fraud and kickbacks
• Pharmaceutical-related
• Tampering with drugs
• Sale of drugs
• Criminal negligence
• Patient abuse
• Other
Other Stakeholders
 Parties in Health Care Delivery
• Providers
• Facilities
• Health care products
• Pharmaceuticals
• Medical devices
• Durable medical equipment (DME)/prosthetics, orthotics and supplies (POS)
• Other equipment and supplies
• Research
• Public health
• Regulation/oversight
 Drugs and Health Care Products
• Food, Drug, and Cosmetic Act (1938)
• Drugs
• Medical devices
• Multiple amendments and other acts
• Durham-Humphrey (1951)
• Kefauver-Harris (1962)
• Hatch-Waxman Act (1984)
• Orphan Drug Act (1983)
• Safety improvements
• DSHEA (1994)
• PDUFA (1992)
• And many others
 Oversight of Drugs and Products
• State oversight
• Pharmacies
• Prescribing
• Industry regulation
• Federal oversight
• FDA
• FTC
• DEA (Harrison Narcotics Act of 1914)
• EPA, USDA, ATF