Scott D. Buchholz, a partner at law firm Dummit, Buchholz & Trapp in San Diego, specializes in health care-related litigation and liability risks that health care professionals and organizations face. He spoke with Business Insurance Senior Editor Judy Greenwald about some risks associated with accountable care organizations set up as a result of the federal health care reform law. Edited excerpts follow.

Q: What areas of professional liability risk do you see within accountable care organizations?

A: I see negligence related to limiting patient choice and “economic” credentialing, which is credentialing physicians not just based on their competence as technicians but on their value to the ACO.

Other areas of professional liability risk would include medical care protocols, and that would relate to ACOs' desire to, say, reduce diagnostic testing. Let's say an ACO doesn't feel mammograms are useful in certain situations. That can lead to a claim because the ACO is looking to reduce costs based on evidence-based medicine.

Another area is vicarious liability — that is, liability for physicians or other health care providers within the ACO network.

The other aspect is coordination of care. Does the ACO have a network in place where its patients can be timely assessed, and their medical conditions managed in a reasonable fashion?

In addition, ACOs will be compensated based on how efficiently they can manage care, and that is done through avoiding duplication of effort, duplication of testing, making sure that individuals or health care providers have an awareness of what other health care providers are doing.

But there are concerns that the transfer of information is not going to be free of (Health Insurance Portability and Accountability Act) or privacy concerns. When we're trying to integrate various health care practices, it's important that these practices have the same software system … that privacy and security are maintained.

Q: How successfully are ACO risks being addressed?

A: At this juncture, ACOs are still in their infant stages. There's not a lot of claims data on ACOs. There's not been a lot of reported lawsuits or cases in this area. We haven't seen the first wave of lawsuits either in state or federal court, where we can say, '”Yes, these are the issues and they're not being addressed and we need to work harder to address the liability exposures.”

Q: How should ACO risks be addressed?

A: I think ACOs should continue to rely on traditional legal defenses related to malpractice. The doctor is still the signal caller when it comes to decisions as to whether or not care is appropriate; and even if there is a financial or administrative decision involved in whether or not a patient gets a particular treatment, as long as it is within the bounds of reasonable care and based on evidence-based practice, that should be sufficient to carry the day as far as limiting the exposure of the ACO. I think continuing to emphasize the sharing and transfer of documentation amongst the ACO participants is also very, very important.

Q: You have said hospitals risk becoming modern day “Towers of Babel.” Can you explain?

A: It relates to the different electronic health record vendors. There are so many different types of products that hospitals have purchased, or doctors have purchased, but they're not at all coordinated.

It is really amazing to me that when I defend a hospital or doctor, that once a software program or product is purchased and utilized, the hospital itself can develop its own variables and constants within that program and it grows its own life. So when you have to coordinate care amongst hospitals that have different systems, that's where the reference to the Tower of Babel comes in.