A National “Safe Harbor” to Reduce the Cost of Defensive Medicine?


By: Michael Eshman 
The Center for American Progress recently proposed a “safe harbor” in medical malpractice litigation to reduce the cost of defensive medicine.  The essential component of the “safe harbor” plan is the creation of clinical-practice guidelines on a national level, ideally through physician organizations – such as the American College of Obstetrics and Gynecologists.  Under this system, the national guidelines would be presumed to establish the legal standard of care and create a “safe harbor” from medical malpractice for physicians who can show that they followed the guidelines.  The idea being that, with national guidelines that establish the presumptive legal standard of care, physicians hoping to avoid suit will follow the national guidelines rather than practicing defensive medicine – the ordering of excessive and unnecessary medical tests, procedures, or further consultations.
Though the proposal cites an Oregon study that estimated the implementation of a “safe harbor” could save 5% in medical liability costs in Oregon and could resolve 10% of claims more quickly, the value of a national “safe harbor” as a means of reducing the cost of medical malpractice liability is unclear.  A claimant could still support a medical malpractice claim with evidence that the guidelines are not applicable to the specific situation or that a physician did not actually follow the guidelines.
Other proposals to reduce the cost of medical malpractice liability include capping the amount of damages that may be awarded in medical malpractice suits, which has been found unconstitutional in Georgia, and the adoption of the worker’s compensation model for medical malpractice claims.  Either the capping of damages or the adoption of a worker’s compensation model would likely go further in reducing medical malpractice liability costs for medical providers.  However, both methods raise significant legal and constitutional questions.
What are your thoughts on the Center for American Progress proposal and other possible methods of reducing the cost of medical malpractice claims and reducing the cost of defensive medicine?