Following Guidelines Will Not Create Safe Harbor

At the end of May, Physician’s Weekly featured an article describing a bill that was introduced into the House of Representatives called HR 1406 The Saving Lives, Saving Costs Act. It would create a “safe harbor” for physicians who could show that they followed best practice guidelines when faced with a malpractice suit. At the end of the piece, a question was asked, “Do you think this bill will help safeguard physicians against the influx of federal rules and regulations?” Knowing little about the bill at the time, I tweeted that such a bill would never pass. I couldn’t list the reasons in a tweet, but here are a few. Although guidelines are useful, they can be controversial too. Take the guidelines on screening mammography and PSA testing. When they came out, there was so much criticism that it would be difficult for any defense lawyer to use them as safe harbors. Plaintiffs’ experts would simply say they disagreed with any guideline. A seed of doubt would be planted in the minds of jurors, and the safe harbor defense would fail. The Dr. Whitecoat blog published a conversation between an emergency physician and a plaintiff’s lawyer. It should be read in its entirety, including the comments, to be appreciated. The conversation was mostly about the Choosing Wisely campaign, in which specialty societies publish guidelines listing certain tests and treatments that they feel can be avoided. He said, “There will be a lot of bad discharges, refused admits, procedure delays, diagnoses delays, all in the name of ‘costs.’ Your societies and hospitals are masking this as evidence based practice, etc....
Safe Harbor for Docs  Who Follow Guidelines

Safe Harbor for Docs Who Follow Guidelines

Physician leaders are supporting a new proposed federal law that aims to reduce litigation against physicians, lower healthcare costs, and establish more fairness in the analyzing of malpractice claims. The new House bill, Saving Lives, Saving Costs Act, introduced by Congressmen Andy Barr (R-KY) and Ami Bera, MD, (D-CA) would create “safe harbor” – protection from liability – for physicians who follow best practice guidelines from malpractice suits. More than 75% of physicians face a malpractice claim over the course of their career—a liability climate that can drive patient care and encourage overutilization, adding billions of dollars in health costs each year. And patient outcomes don’t appear to improve as a result. If the physician being sued argues that he or she adhered to relevant, best practice guidelines, the case will be put in front of an independent medical review panel for investigation. If the panel determines that the clinician did comply to the guidelines or that the injury was not caused by failure to comply, the case will be dismissed. Personal injury lawyers are pushing back, one in particular claiming: “There is no evidence, however, that this safe harbor would actually promote patient safety. In fact, in Texas, where emergency room physicians have had immunity since 2003, patient safety has steadily decreased.” The Center for Justice and Democracy argues that clinical practice guidelines should not be used as a legal basis for determining negligence. The organization claims that there is already a general recognition that conflict of interest and specialty bias are ongoing problems in the development of clinical practice guidelines. Other concerns include the numerous, and sometimes contradictory, guidelines...