Crossing the Quality Chasm: Autonomous Physician Extenders Will Necessitate a Shift to Enterprise Liability Coverage for Health Care Delivery

Abstract

The Institute of Medicine (IOM) set off a media feeding frenzy when it published To Err is Human, which reported that health care providers kill almost 100,000 people each year. Fifteen months latter, the IOM offered its solutions the much less publicized Crossing the Quality Chasm. Specifically, the IOM recommended America jettison its traditional health care system by amending state professional licensing statutes to liberalize the utilization of physician extenders, who will be protected from liability by enterprise liability. Although the IOM's proposals have much appeal to the business world fascinated by the Six Sigma management paradigm, the IOM proposals raises three legal issues. First, medicine is regulated at the state, rather than the federal level. State licensure laws have traditionally limited multidisciplinary medical practice by granting physicians hegemony over physician extenders. However, increased use of physician extenders would be more cost effective. The federal government, which pays for 50% of health care costs, lacks the authority to unify medical licensure and scope of practice acts by fiat; and politically a frontal assault on state authority under the banner of the commerce clause may not be wise. Most probably, the federal government will achieve unification of state licensure laws by providing conditional payment for medical care. Second, physician extenders have been traditionally been held to a lower standard of care than physicians because their limited training. While evidence exist to the contrary, to conclude that the care rendered by the average physician is the same as the care rendered by the average physician extender is naive. There is no a priori reason to believe to believe that if a greater percentage of our health care was provided by physician extenders it would of a better quality. In fact, if more health care is provided by physician extenders the number of adverse medical events would be expected to increase. However, many states physician extenders are not defined as health care provides; hence physician extenders are not require to obtain professional liability insurance. The cost of providing traditional indemnity insurance coverage to physician extenders could be substantial. Third, the IOM clearly had the issue of physician extender liability mind when it proposed, long before the current medical malpractice crisis, that the country should move to an enterprise system of liability coverage. Enterprise liability is a slippery concept because of polymorphic definitions. However, if enterprise liability were imposed on the payors of health care service, a manner analogous to imposing product liability on manufacturers, strong financial incentives to police both physicians and physician extenders would be created. In short, to ensure that the quality of medical care is not diminished by moving toward a greater reliance on physician extenders, it will necessary for the country to shift from an indemnity-based to an enterprise-based professional liability coverage. Thus, when it comes to the vision of health care announced Crossing the Quality Chasm, Gilbert's remarks are apt: in for a penny, for a pound.