In one of the first lawsuits of its type, a Chicago hospital is suing The Leapfrog Group, a Washington, D.C.-based national not-for-profit group that grades hospital quality performance, for the lowered grade that Leapfrog recently gave the hospital. St. Anthony Hospital, an independent, faith-based, 151-bed community hospital on Chicago’s Southwest Side, is suing The Leapfrog Group, which on its website describes itself as “a national nonprofit organization driving a movement for giant leaps forward in the quality and safety of American health care.” The lawsuit, which was initiated by St. Anthony on Oct. 30, has now been answered by Leapfrog in a Dec. 5 affirmative-defense filing that pushes back both on the timing of the hospital’s lawsuit and on its substance.
As Leapfrog notes, “The flagship Leapfrog Hospital Survey collects and transparently reports hospital performance, empowering purchasers to find the highest-value care and giving consumers the lifesaving information they need to make informed decisions. The Leapfrog Hospital Safety Grade, Leapfrog’s other main initiative, assigns letter grades to hospitals based on their record of patient safety, helping consumers protect themselves and their families from errors, injuries, accidents, and infections.”
Meanwhile, as Jenny Gold wrote in an article in Kaiser Health News and The Washington Post that was published on Dec. 11, “For two years, Saint Anthony Hospital here has celebrated its top-rated ‘A’ grade from the national Leapfrog Group that evaluates hospital safety records. But this fall, when executives opened a preview of their score, they got an unwelcome surprise: a ‘C.’ Hospitals take their ratings seriously,” Gold continued, “despite hospital industry experts’ skepticism about their scientific methodology and studies showing that scores may not have a huge influence on patient behavior. In a highly competitive market, no one wants to be a ‘C-‘rated safety hospital any more than a ‘C’-rated restaurant for cleanliness. So, the hospital didn’t take its new grade sitting down. It sued the ratings group for defamation, alleging that the grade was based on data that Leapfrog knew to be inaccurate.”
As Gold’s story reported, St. Anthony has filed a complaint in the Circuit Court of Cook County, the county encompassing Chicago. In its complaint, filed on Oct. 30, the hospital contended that “If Leapfrog publishes a ‘C’ grade for Saint Anthony as part of its Fall 2017 Hospital Survey Grades, it will erase years of improvements at the hospital and irreparably degrade the public perception of the hospital,” according to the complaint, which was filed in the Circuit Court of Cook County, Ill. “Saint Anthony competes with other hospitals in the immediate area, including one down the street, and one of the most important ways Saint Anthony recently has been able to distinguish itself is the high safety grades it receives from Leapfrog.”
What’s more, St. Anthony Hospital directly challenged Leapfrog on the content of its grade. The hospitals lawyers wrote, “In its Fall 2016 and Spring 2017 Hospital Safety Grades, Leapfrog assigned Saint Anthony an ‘A’ grade. However, on Tuesday, October 31, 2017, Leapfrog will publish a ‘C’ grade for Saint Anthony. That grade is wrong because it is based on Leapfrog’s incorrect assessment and statements that Saint Anthony physicians only order medications through CPOE 50-74 percent of the time, when in fact, Saint Anthony physicians order medications through CPOE approximately 95 percent of the time. Saint Anthony contacted Leapfrog on multiple occasions to discuss that it was misrepresenting CPOE statistics for Saint Anthony and Leapfrog’s representatives admitted that Saint Anthony’s CPOE score ‘negatively impacted [its] overall grade.’ Nevertheless, leapfrog informed Saint Anthony that it intends to publish the misrepresentations about CPOE and Hospital Safety Grade despite knowing they are wrong. Leapfrog’s impending publication of these false and disparaging representations are actionable under the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/1 et seq., and common law defamation per se. Saint Anthony has instituted this Complaint seeking an order that will only restrain Leapfrog from publishing false numbers regarding Saint Anthony’s percentage of computerized physician orders for medications and the correspondingly incorrect Fall 2017 Hospital Safety Grade. Saint Anthony does not seek to stop the publication of any other hospital’s safety grade.”
Meanwhile, on Dec. 5, Leapfrog filed an affirmative defense with the court. It began thus: “One of Leapfrog’s flagship initiatives is its Leapfrog Hospital Safety Grade program, a letter grading system that provides consumers with an easy to understand grade of A, B, C, D, or F (a “Safety Grade”) on how well hospitals keep their patients safe from errors, injuries, accidents, and infections. Over 2,600 hospitals are evaluated in the Leapfrog Hospital Safety Grade program, which calculates grades twice per year—once in the spring and once in the fall. It also operates a hospital survey, the Leapfrog Hospital Survey (or the “Survey”), which evaluates hospitals on a variety of safety and quality metrics. Some of the data collected in the Hospital Survey are used in the Safety Grade, but participation in the Survey is voluntary is not required to receive a Safety Grade.”
Leapfrog went on in the affirmative defense to say, “Each Leapfrog Hospital Safety Grade that Leapfrog calculates for a hospital results from Leapfrog’s rigorous and peer-reviewed scoring methodology, which relies on both public data (e.g., information publicly reported by the Centers for Medicare and Medicare Services) and also data from Leapfrog’s own Leapfrog Hospital Survey for those hospitals that voluntarily submit a Survey. The grading methodology also includes data that hospitals voluntarily submit to the American Hospital Association (AHA) Annual Survey and HIT Supplement. Leapfrog’s peer-reviewed scoring methodology is available to the public on the Safety Grade website. The scoring methodology has been refined over the years under the guidance of a national panel of patient safety researchers and experts, and based on feedback from the hospital community. Using scores from the 27 measures included in the Safety Grade, a single numerical score is calculated that is then translated into a letter grade.”
What’s more, Leapfrog’s lawyers essentially contended in their affirmative defense that St. Anthony executives and lawyers had acted too late. “On September 13, Leapfrog opened up a three-week data review period for hospitals receiving a Fall 2017 Leapfrog Hospital Safety Grade to review all data from all sources that would be used to calculate their Safety Grade, and to raise any concerns about those data with Leapfrog. During this period, Plaintiff did not review its data and raised no issue regarding the CPOE data Plaintiff provided to Leapfrog. Ten days after the close of the review period, on October 13, 2017, Plaintiff logged into the Leapfrog Hospital Survey via the online survey tool but did not change any survey responses pertaining to CPOE…. Only six days before the long-publicized publication date for the Fall 2017 Leapfrog Hospital Safety Grade did Plaintiff for the first time ever indicate to Leapfrog that it believed it had submitted inaccurate CPOE data in June and that its Fall 2017 Safety Grade was inaccurate as a result.”
Given the circumstances, Leapfrog’s attorneys wrote, “Leapfrog was compelled to adhere to its established procedures and timetables for data submission, review, and the calculation of Safety Grades in order to maintain consistency and fairness in its grading process. However, Leapfrog did offer to assist Plaintiff through the process of documenting updated CPOE information and resubmitting its Leapfrog Hospital Survey. While this update could not change Plaintiff’s Fall 2017 Safety Grade, it would be used in the Spring 2018 Leapfrog Hospital Safety Grade. Notwithstanding Leapfrog’s offer, Plaintiff to date has been unable to verify that an update to its CPOE data is even warranted.” Leapfrog’s attorneys wrote in their affirmative defense, noting that “Plaintiff instead rushed into court on October 30, 2017—the very day before the Fall 2017 Leapfrog Hospital Safety Grades were to be published—bringing a lawsuit for emergency relief based on information provided and affirmed as accurate by Plaintiff, and indeed published for Plaintiff’s review for months without any objection from Plaintiff, despite numerous prompts and opportunities to verify the data.”
As Jenny Gold’s Post story noted, “Saint Anthony’s complaint appears to be the first time a hospital has sued a rating agency over a contested grade. But in an era when hospitals are brands and patients are customers hoping to make rational purchases for care, such grades and rating systems are likely to face more scrutiny and new pushback.
And Gold quoted Ashish Jah, a professor at the Harvard T. H. Chan School of Public Health, as noting that, “In highly competitive markets, hospitals are likely to see poor grades as a challenge, and I think many will be tempted to sue the rating agencies.” Jha, who was on a committee that helped set standards when Leapfrog was established, said he was heartened that hospitals are reacting to data, whatever the impetus. “If they’re going to use that as motivation to get better, that’s perfect,” he told the Post. “As a patient, you don’t care why a hospital is investing in safety, you just care that they are.”
Healthcare Informatics will update readers on this story as new developments occur.