Medical malpractice immunity from clinical practice guidelines

Ezra Klein calls Peter Orszag’s proposal in a recent New York Times column a “new idea on medical malpractice reform.”

Except it’s really not.

The idea of immunizing doctors who follow strict clinical practice guidelines was floated by the AMA back in May of 2009. I supported the idea back then, saying the AMA is

acknowledging and embracing the data that is very influential in the White House, as well as in progressive health policy circles, and parlaying that into reasonable malpractice reform.

I think it’s a smart play.

Orszag brings the idea back up almost a year and a half later, using malpractice as a way to convince doctors curb costs. As I mentioned earlier, if progressive health policy experts want doctors to change behavior, they need to entice physicians with carrots.

And there’s no bigger carrot than malpractice reform. Here he is, waving a fat orange one in front of doctors:

The traditional way to reform medical malpractice law has been to impose caps on liability — for example, by limiting punitive damages to something like $500,000. A far better strategy would be to provide safe harbor for doctors who follow evidence-based guidelines. Anyone who could demonstrate that he has followed the recommended course for treating a specific illness or condition could not be held liable.

And, no doubt, this would be enticing. But it’s unlikely going to work.

The main problem is that doctors themselves won’t agree on a consensus set of practice guidelines the practice under. Witness the debacle that came after the USPSTF changed their mammogram screening guidelines.

Or the pushback from urologists whenever the utility of PSA screening tests is called into question.

And finally, patients themselves need to accept the ramifications of practicing under strict, evidence-based guidelines. Most of which will mean less testing, which has been shown in studies to be an idea that some patients may find difficult to accept.

But I find it refreshing to see progressive health policy experts, who often are loathe to admit anything wrong with the malpractice system, offering cogent solutions — which is a step in the right direction.

 is an internal medicine physician and on the Board of Contributors at USA Today.  He is founder and editor of, also on FacebookTwitterGoogle+, and LinkedIn.

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