Adopting Leapfrog Standards as Legal Standards of Care

In 1999, it was reported that over 98,000 preventable deaths occurred in hospitals each year.  To combat the prevalence of such errors, in 2000, the Business Roundtable, a consortium of CEOs from large U.S. corporations, organized the Leapfrog Group. Today, Leapfrog consists of more than 150 large employers.  One of the primary purposes of Leapfrog has been to motivate health care institutions to improve patient safety by encouraging the millions of employees it represents to seek health care from institutions that have adopted certain standards of care.  Employer members of Leapfrog agree to base their health care purchase decisions on "principles encouraging more stringent patient safety measures."

 

Medical malpractice cases are based on the premise that a physician caused the patient injury or death by negligently departing from the appropriate standard of care. By leveraging its purchasing power to influence health care organizations to adopt its own standards of care, Leapfrog has the potential to revolutionize medical malpractice litigation, by setting new standards of care that courts could adopt when assessing medical malpractice liability.

 

Three Leapfrog Standards and the Relationship with Preventable Errors

Members of Leapfrog believe that by encouraging health care providers to subscribe to specific patient safety policies, preventable injuries may be reduced.  Specific policies intended to reach this result include the following:

1. Computerized Physician Order Entry (CPOE) of medication orders
2. Referral of patients in need of certain high-risk procedures to hospitals that meet specific criteria
3. Constant coverage of intensive care units (ICUs) by hospital staff

Health Care Purchasing Decisions Influence Health Care Providers

In order to encourage health care providers to subscribe to the above policies, Leapfrog directs its member employers to consider specific criteria in connection to purchasing health care.  The expectation is that health care providers will observe the specific criteria considered by employers in their purchasing decisions and that health care providers will consider the same principles.  The following four "purchasing principles" were adopted by Leapfrog at its opening in 2000:

1. Advising enrollees to consider patient safety and the importance of comparing performance among health care providers, in consideration of Leapfrog's measures
2. Providing recognition and incentives for health care providers for significant improvements in patient safety
3. Applying principles of accountability for health care providers who implement Leapfrog's standards
4. Establishing support with brokers and benefits consultants so they may, in turn, inform their clients while procuring support from them

As an additional means to encourage application to such principles, in 2001, Leapfrog began surveying hospitals in connection to safety issues and posting the results on the Internet.

 

Leapfrog Standards Admitted as Evidence of the Legal Standard of Care

While the Leapfrog standards of care do not officially represent medical custom, there are several arguments a plaintiff's attorney might make to admit the Leapfrog standards as evidence of the standard of care at issue in a medical malpractice case.  For instance, one might argue that the patient was never given informed consent to participate in a treatment or surgical procedure prescribed by the treating physician, because the physician did not tell the patient that the risk of injury or death might have been lower at a Leapfrog-compliant hospital.  In addition, one might argue that the relevant Leapfrog standard is so imperative that it was an unnecessary risk for a hospital not to implement it. 

 

Furthermore, one might argue that the Leapfrog criteria should be considered among other guidelines as evidence of the legal standard of care.  At least one lawsuit was been based on this argument.  In Miami-Dade County in Florida, a woman had been hospitalized in need of having a pancreatic tumor removed.  She claimed that she should have been referred to a nearby hospital that had performed this procedure much more frequently than the hospital she received treatment in.  This argument was based on Leapfrog's assertion that fewer injuries will occur where health care providers engage in a higher volume of specific medical procedures.