Are safe harbors the answer to fixing medical malpractice?

The U.S. medical malpractice system is broken. It frequently does not punish doctors who need punishing, while levying fines against doctors who did nothing wrong. And this dreadfully inaccurate system still manages to take almost five years, on average, to settle claims.

Experts have been promoting a type of reform known as safe harbor rules, which would shield physicians from lawsuits in cases where they were known to be following accepted clinical guidelines. For example, a patient who develops metastatic prostate cancer could not sue his physician for failing to screen him for that cancer if safe harbor rules include recent guidelines concluding the prostate screening is not routinely indicated.

The goal of safe harbor rules is to protect doctors from frivolous lawsuits. A study suggests the rule will probably be more beneficial to patients than doctors. The researchers reviewed over 900 malpractice lawsuits in Oregon that took place between 2002 and 2009. They reviewed the claims and tried to figure out if those cases would have gone differently if Oregon had a safe harbor rule in place at that time. They found that only 3 of 970 claims decided against doctors would have instead been decided in their favor if a safe harbor rule had been in place. In other words, safe harbor legislation does not look like it will help doctors very much. Worse yet for doctors, 14 cases would have likely been decided against them, because of harms that were caused by physicians not following practice guidelines.

But the point of malpractice reform is not simply to relieve physicians of unwarranted lawsuits. The most important goal is to improve the quality of care that physicians provide. The research team discovered 41 cases in which patients would not have been harmed if physicians had followed practice guidelines. See the accompanying table, which summarizes their findings:

Are safe harbors the answer to fixing medical malpractice?

In short, safe harbor legislation will not necessarily reduce the number of medical malpractice suits in the U.S. But it might improve patient care, by focusing physicians on the importance of following carefully crafted clinical guidelines.

Peter Ubel is a physician and behavioral scientist who blogs at his self-titled site, Peter Ubel and can be reached on Twitter @PeterUbel.  He is the author of Critical Decisions: How You and Your Doctor Can Make the Right Medical Choices TogetherThis article originally appeared in Forbes.

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  • Thomas D Guastavino

    “Carefully crafted clinical guidelines” Theres an oxymoron if there ever was one. Guidelines may have value for physicians in training or when clinical thought radically changes, but I have never experienced, or even heard of, an example where following a guideline significantly improved upon what an experienced physician was already doing. At best they confirmed what I was already doing or made no difference. At worst, they have actually put my patients at more risk. DVT prophylaxis guidelines are a classic example.
    The medical malpractice, or for that matter the entire tort system, is flawed for many reasons but the main one is that there are no consequences for attorneys that file claims with no merit. Like the Matrix, the attorneys control all the doors and hold all the keys. Plaintiffs are pressured into settling defensible cases on the basis that the case would be cheaper to settle then to defend. Until there are loser pays rules this problem will never be solved.

    • NPPCP


  • Vamsi Aribindi

    Before starting med school, I would have thought this is a great idea. Now, I think it’ll just add even more perverse incentives.

    Suppose a 60 year old comes in with a history of hypertension and hyperlipidemia. A physician might try a statin. But the patient takes to it terribly- no myositis, but nausea, vomiting, constipation, etc. Right now, the physician would probably take the patient off the drug or reduce the dosage, after having a conversation about risks and benefits. After this bill is passed, what physician would dare? If that patient has a heart attack while not taking statins, that doc is done for. Guidelines say that patients should get _____, so we’re going to give them ______. If they don’t fill the prescription, that’s the patient’s problem. End of story.

    Think about how much we hate quality measures and all the BS we have to fill out and document just to give care to the patient. This would be like that except magnified beyond all reason because everyone is terrified of lawsuits.

    The only reasonable solution to medical malpractice is New Zealand Style No-fault medical injury.

  • Margalit Gur-Arie

    As far as I know, all clinical guidelines come with a disclaimer saying that the guidelines may not apply to particular individuals and are not replacing the need to exercise clinical judgement. So I don’t really see how following guidelines can be regarded as a safe harbor, when the guideline creators specifically say that they are not.
    Now, if some governmental office took upon itself to create clinical orders, covering all possible circumstances, to be followed exactly as written at all times, I guess doctors who just followed orders could claim safe harbor. That’s probably how they’re going to arrange things before computers are licensed to practice medicine.

  • Ron Smith

    Hi, Peter.

    I’m convinced that the same solution to the patent troll problem will solve the malpractice problem.

    It has to make loosers have skin in the game. Lawyers who ambulance chase do so for a living. They might have some real concern about their clients, don’t get me wrong,

    Being willing to take a patent or malpractice case means you really believe in what your client says. and pay for the defendant cost means you have that skin in the game.

    Its working in Texas.

    Warmest regards,

    Ron Smith, MD
    www (adot) ronsmithmd (adot) com

    • Karen Ronk

      I think it is only fair to point out that lawyers who “ambulance chase” have their so called “expert” witness doctors riding shotgun.

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