NCH Healthcare System files lawsuit against Leapfrog Group for 'D' patient safety grade

The NCH Healthcare System is seeking an injunction against The Leapfrog Group to prevent release of a new “D” grade for patient safety at NCH, according to court records.

NCH filed a lawsuit against the Washington, D.C.-based Leapfrog alleging that a “D” grade to be published shortly is misleading and wrong and will violate the state’s unfair trade practices act, according to the Oct. 22 complaint in Collier Circuit Court.

Leapfrog twice a year publishes hospital safety grades for 2,600 hospitals nationwide and charges fees to hospitals to market their safety grades to the public.

Leapfrog uses 28 patient safety measures to grade hospitals to help consumers learn about errors, injuries, accidents and infections.

Grades were confidentially provided to hospitals Oct. 21, the day before NCH filed its complaint, and will be posted Nov. 7 on Leapfrog’s website at www.hospitalsafetygrades.org.

A court hearing has not been scheduled for NCH’s injunction request.

Leapfrog filed a motion Wednesday to have the case transferred to federal court in Fort Myers, records show.

Read:Incoming NCH Healthcare System CEO starts networking in community

“If NCH suffers the wrong of having a false grade published, it will not be able to effectively market its high quality and safe practices or distinguish itself from other area hospitals,” according to the complaint. “In addition, it will result in the loss of patients and revenue to the hospital. This would be a significant harm to NCH and impair its ability to operate.”

NCH reported operating income of $12 million for the nine months ending June 30, 2019, a significant decline from nearly $25 million for the same period in 2018, according to financial records.

Read:Five things to know about NCH Healthcare System's new CEO Paul Hiltz

Previously:NCH Healthcare System names new CEO

NCH’s complaint refers to a “D” grade but does not disclose which of its two campuses, NCH Baker Hospital Downtown or North Naples Hospital, is receiving the grade. Leapfrog’s grades are embargoed and it will be releasing a grade for each campus, as it does for all other healthcare systems that own multiple campuses.

Leapfrog officials said Thursday that NCH may wish to withhold the grade from the community, but Leapfrog intends to fully defend its First Amendment rights to publish NCH’s grades.

“Naples residents should be very concerned when their hospital system wastes money on a frivolous lawsuit disputing the free speech rights of an independent nonprofit organization,” Leah Binder, president and CEO of Leapfrog, said in a statement.

NCH said it contacted Leapfrog on multiple occasions to discuss the grade and was informed Leapfrog intended to proceed.

Leapfrog punishes hospitals that do not participate in a survey that Leapfrog uses as the primary source of data for grades, according to NCH's complaint. The survey is self-reported information from hospitals that Leapfrog seldom audits, the complaint says.

Data from the federal Centers for Medicare & Medicaid Services is used for hospitals that don’t fill out the Leapfrog survey, which means competing hospitals are graded on different measures, which is not disclosed to the public, the complaint says.

NCH annually cares for more than 40,000 patients combined at its two hospitals with a total of 716 beds. The nonprofit system has received numerous recognitions from the Joint Commission for hip and knee replacement surgery and for stroke care.

More:NCH Healthcare System welcomes 12 new doctors to residency program

NCH in 2019 was named a best regional hospital from U.S. News & World Report. It also received excellence awards in 10 areas of clinical care by Healthgrades, another hospital rating organization based in Denver.

Leapfrog’s 28 safety measures are grouped in two categories that each account for 50% of the overall score.

The first category is process-focused and relates to how often a hospital gives patients a recommended treatment and the environment in which patients receive the care. The second category is an outcome measure addressing what happens to patients while receiving the care.

Because NCH did not take part in Leapfrog’s survey that is the primary source of data for 13 of the 28 measures, Leapfrog instead used information from CMS, which resulted in competing hospitals being graded with different data, according to NCH’s complaint.

That is misleading and deceptive to the public because Leapfrog says all hospitals are graded in the same manner, according to the complaint.

In August 2019, a group of researchers published an assessment of various hospital rating organizations and gave Leapfrog a “C-minus,” according to the “Rating the Raters” article published by Catalyst, a healthcare delivery publication of The New England Journal of Medicine.

The researchers gave the rating firm Healthgrades a “D-plus,” and U.S. News & World Report received a “B.” The federal government’s star rating system through CMS received a “C.”

The researchers said about 50% of hospitals nationally answer the Leapfrog survey so a good deal of the rankings are based on inconsistent data.

In response to the researchers, Leapfrog said that it had done formal audits of five of the 2,600 hospitals in the past year, and only 72 hospitals had undergone electronic audits.

The researchers said each rating system has unique weaknesses that lead to potential misclassifications of hospital performance. The weaknesses include flawed measures, use of proprietary data that has not been validated, and methodology decisions.

The researchers said Leapfrog is the only organization that includes an assessment of the “culture of safety," which is an important feature. The greatest concern is with Leapfrog’s survey and lack of audits of what hospitals report, according to the research group.

The American Hospital Association in 2012 accused Leapfrog of having unfair and inaccurate safety grades and an unfair bias toward hospitals complying with the Leapfrog survey.

One other hospital system, St. Anthony’s Hospital in Chicago, in 2017 filed a lawsuit against Leapfrog for defamation.

The lawsuit was filed the day before Leapfrog released its fall 2017 grade. Leapfrog agreed not to publish St. Anthony’s safety grade even though publication of the grade would not have been a false statement, Leapfrog said in a motion to dismiss St. Anthony’s lawsuit. A judge later dismissed St. Anthony’s complaint.

More:NCH Healthcare System addressing radiologist shortage

James Unland, editor of Journal of Health Care Finance and professor of health care business at Loyola University’s School of Law in Chicago, said Leapfrog’s credibility has been questioned by others.

“Thus, NCH in this context is not unreasonable in believing that it has legitimate reasons to question Leapfrog’s methodologies,” Unland, who lives in Bonita Springs, said.

He would like to see reliable data for NCH’s patient safety metrics and infection rates because Leapfrog a year ago had made note of serious infections at NCH.

“I’d like to see NCH and Leapfrog come to some agreement so that they can have a 2019 up-to-date rating with the appropriate details,” Unland said.

NCH said hospitals that engage in the survey can “manipulate the data to artificially raise their grade, while a hospital that does not participate in the survey is penalized by receiving a poor grade,” according to the lawsuit.

Leapfrog charges hospitals fees of $5,000 to $12,500 to market its grades, and does not tell the public that hospitals are charged to market the grades.

Leapfrog’s CEO says the grading methodology has been reviewed and refined over seven years. While NCH complains about missing data, it was NCH’s decision not to voluntarily report the information, Binder, Leapfrog’s CEO, said in her statement.

NCH took part in the survey as recently as 2018, and there is no cost to participate. This past spring, the North Naples hospital was given a “C” and NCH Downtown Naples was given a “B.”

For both 2018 grades, the Downtown Naples campus had “C” grades; North Naples had a “B” in the fall and an “A” in spring, according to prior grades.