The shrinking demand for specialty health care brings with it major implications for the quality of graduate medical education. In particular, the decline in the volume of surgical and other specialty procedures performed makes it increasingly difficult for some academic medical centers to continue to support their residency programs. Without a sufficient number of procedures, a residency program cannot provide adequate opportunities for advanced training.
Our system of voluntary private accreditation has long been relied upon by patients and by state and federal governments as the principal means of promoting the quality, reliability, and integrity of American medical education. For the system to remain effective, however, accrediting bodies, and the physicians who serve on them, must have the freedom to withdraw accreditation from academically deficient programs without undue risk of exposure to potentially debilitating litigation costs associated with having to defend antitrust or other litigation that is easily brought by a residency program that is denied accreditation.
Risks of Denying Accreditation
Since coming on the AANS Board, I have often heard from many of my physician colleagues about the legal risks faced by the Accreditation Council for Graduate Medical Education (ACGME) and its constituent Residency Review Committees (RRCs) when they attempt to withdraw or deny accreditation for residency programs.
Even though the accreditation entity will probably prevail, the risk of going through long and onerous legal proceedings and the costs associated with defending such a suit are far too high. The prospect of becoming embroiled in an enormously costly lawsuit, therefore, exercises a significant chilling effect on the willingness of the accrediting entities and the volunteer physicians who participate in the process to recommend non-accreditation of substandard programs.
At the same time, there is virtually no corresponding risk for the complainant. The chilling effect of this legal incongruity is two-fold: First, the individuals invited to serve on the resident review committees are giving second thoughts as to why they should put themselves and their families in jeopardy. Second, the ACGME and RRCS, which should be acting as advocates for quality education on behalf of the American public, are presently provided with persuasive liability arguments for not making the difficult quality decisions.
Managing the Risk
Two years ago, the Washington Committee decided to bring this problem to the attention of the federal government in search of a remedy. Since that time, representatives from the AANS and CNS have met with staff from the U.S. Department of Justice, the Federal Trade Commission, the White House, and Senator Orrin Hatch (R-UT) – Chairman of the Senate Judiciary Committee.
Senator Hatch recommended we develop a specific legislative proposal for his consideration. We took his advice and hired a lawyer who specializes in health care antitrust matters. With his assistance, the “Quality in Graduate Medical Education Act” was drafted.
The “Quality in Graduate Medical Education Act” is designed to encourage accrediting entities to make sound decisions in the interests of patients. Patterned after the Health Care Quality Improvement Act of 1986, the proposed legislation provides protection for good faith accreditation decisions designed to promote the quality of medical care. Specifically, our proposal would provide legal protection for accrediting organizations and their volunteer members who participate in good faith, quality-based accreditation determinations. It would also provide that plaintiffs who sue accrediting entities, but ultimately cannot prove their case, would have to bear the costs and attorneys’ fees of the defendants. The Act would not limit the ability of the federal or state governments to challenge any accreditation decision. Further, private plaintiffs would retain the right to sue an accrediting entity that has acted in bad faith. Most importantly, it would not expose the public to an increased potential for harmful conduct by accrediting entities.
Gathering Support
The AANS and the CNS are now in the process of garnering support for this draft legislation. Our first step is to gain broad-based backing for our plan within the medical community. We have sent it to a number of medical organizations, including the American Medical Association (AMA) and other medical specialty societies.
To date, the American College of Surgeons and the American College of Cardiology have endorsed our proposal. In addition, the AMA House of Delegates, at its December 1996 meeting, supported our approach. Once we get organized medicine on board, we will then identify a champion in Congress to shepherd the legislation through the legislative process.
The AANS and CNS believe accrediting organizations must be free to make hard decisions about educational quality without undue risk of legal liability and without fear of incurring burdensome expenses. We think the “Quality in Graduate Medical Education Act” provides the right solution to this vexing problem.