Erin E. Dine


Seeking a resolution to the wasteful and inefficient health care system in the United States, the 2010 Patient Protection and Affordable Care Act (“PPACA”) reframed the health care market, incentivizing a lower-costing, higher-quality system. In its attempt to improve patient access to a more accountable and coordinated health care system, the PPACA included and authorized the use of the Accountable Care Organization (“ACO”). Groups of health care providers collaborate through an ACO in hopes of delivering, and reaping the financial benefit from, high-quality, low-cost health care. Despite the attractive goals set by the PPACA, the reality of medical malpractice liability confronts the ACO movement. This Article seeks to articulate the distribution of provider accountability when medical malpractice occurs within the ACO model and how to incentivize actors to participate in ACOs despite the increased liability threat. This Article submits that ACOs remain a vital part of U.S. health care reform, but the survival of the current reform is contingent on physician participation in managed care models and the delivery of low-cost, high-quality health care. This Article examines the tension inherent in cost-containment goals and the medical malpractice standard of care within a historical framework of reimbursement models. By employing a “carrot-and-stick” approach, this Article proposes the theory of enterprise insurance as the route that can simultaneously reward ACO participants with an influencing carrot and preserve quality care through an enforcing stick.

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