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Defensive Medicine: Safe Harbors as a Solution

Tags: | Comments: 3 | February 20th, 2014

Defensive Medicine Safe Harbors as a SolutionToday’s is the third post in our ongoing series on defensive medicine, its costs, and measures that have been proposed to combat it.  In the first post we introduced defensive medicine, defined as the practice of ordering medical tests, procedures, or consultations of doubtful clinical value in order to protect the prescribing physician from malpractice suits.  We also reviewed some of the findings of a recent survey in which the vast majority of doctors in the U.S. reported practicing defensive medicine to an estimated tune of $650-850 billion a year, or 26-34% of the total annual cost of healthcare in this country.  Finally, in that post we looked at tort reform which is the most commonly proposed means of reducing the practice and cost of defensive medicine.

But as necessary and important as tort reform may be last week’s post, like today’s, focused on another solution that has been proposed: patient compensation systems which utilize administrative panels of experts to determine whether a patient should be compensated apart from questions of fault and apart from the court system.  Of course, as we noted, this is a pretty extreme proposal and not one that is likely to be adopted widely in the near future.

Today we turn to another model that has been suggested by some public policy analysts: the “safe harbor.”  The idea here is to create clinical guidelines that, if adhered to, would function as a safe harbor for doctors, shielding them from liability in a malpractice case.  In other words, these clinical guidelines would function as a universal standard of care, recognized by the courts, and providing a definitive course of action for doctors to follow and remain safe from malpractice liability.  Of course, this proposal would depend on new legislation codifying the requirements for a clinical guideline to have such status, and laying out the specifics of how such guidelines are to be understood and applied in the courts and in terms of documentation.

So what are the supposed benefits of this model?  One is that clinical guidelines could be created that were strictly evidence based.  This would afford physicians the ability to avoid practicing rule-out medicine where, to avoid liability, they feel that they have to order every test and procedure that could potentially rule out one diagnosis or another.  Instead doctors would be able to proceed straight to the treatment that is best according to the evidence without fear of liability.

Another benefit of the safe harbors proposal, according to its advocates, is standardization of practice.  Not only would the safe harbor guidelines cut back on defensive medicine, but they would also give doctors guidance on best practices and would eliminate a lot of confusion in the court room.  As it is standards of care are admissible as evidence in court cases as a means of bolstering expert witness testimony, but there is no norm governing what standards carry what weight, and there are any number of “standards” one may cite.  Having a legislatively recognized standard of care eliminates such questions, reduces the value of “experts” who testify as needed for pay, and, in the strongest version of the proposal, creates an irrebuttable presumption that care was not negligent.  That is to say that, as some have proposed it, this solution would be legislatively written in such a way that if the doctor followed the standards of care he could not be found negligent.

So what are the pitfalls?  Well, there are more than a few.  Let’s start with the practical and then we can consider the political and philosophical.  Practically speaking the kinds of standards that would be necessary for such a robust proposal would be extremely hard to come up with.  The practice of medicine is not like working on a car, where if you know the make, model, and year and have the right tools available it’s just a matter of following the manual.  Human beings are more complicated than that.  Coming up with definitive answers to what should be done in every conceivable instance, it seems to us, would be nearly impossible.  Likewise, how many guidelines would there be?  It seems that if you were going to try to cover every possibility you’d end up with a volume larger than the OED, maybe even larger than the Affordable Care Act(!).  And what about patients with multiple diagnosis?  Would there be an algorithm for combining the risks, benefits, and compatibility of treatment recommendations under two or more sets of clinical guidelines.

Besides, even if such guidelines were produced it seems that keeping them up to date would be a herculean task.  Things are always changing and developing in the medical world, as in any industry.  Yet if doctors feel compelled to slavishly follow the official guidelines to avoid liability the proposal could actually lead to worse care because doctors might be afraid to implement new and better methods until they were incorporated into the official safe harbor guidelines.

Finally, having safe harbor clinical guidelines would not keep doctors out of court.  Doctors would still have to prove that they followed the guidelines, and that their execution was without fault.  It’s not as though simply checking off a list or making the right diagnosis would be sufficient to avoid being brought to court.  Patients can always argue that although you attempted to do the recommended thing, you did it in such a way that it caused harm, or you did it without taking into account another set of applicable guidelines, or that you followed the wrong guidelines, etc.

But beyond all these practical hurdles there are the more philosophical questions about conformity, uniformity, and choice.  Ultimately a top down, legislatively dictated standard of care takes freedom away from both doctors and patients.  Even though the standards in such a system aren’t something that doctors are technically required to follow, in practice not doing so would likely come to lead to a de facto presumption of negligence.  “Why weren’t you following the recognized standard of care, Dr. Smith?  Don’t you know these standards are evidence based?”  Any doctor not following such standards, were they put in place, would be taking a serious gamble.

Similarly, this proposal would chip away at the freedom of patients to choose a doctor that they feel treats them well.  Getting a second opinion becomes much less valuable when there is a universal standard of care that tells doctors what they should do in your situation.  What would happen to doctors interested in alternative medicine, cutting edge technological developments, or any kind of non-traditional treatment?  It seems that they would become liability magnets.

Ultimately, while we understand and appreciate the motivation behind a suggestion like safe-harbor clinical guidelines and creating a standard of care that a doctor can operate within and feel assured of freedom from negligence, the proposals as they have been made don’t seem tenable.  More than that, some of the outcomes that would likely attend such a policy just aren’t acceptable.  Doctors are professionals and experts.  They spend years in graduate school and residency training to be able to evaluate individual situations and circumstances in light of all kinds of variables and make the appropriate decision for that particular situation.  A universal standard, apart from which one would be in the unfortunate position of not following the “safe” clinical guidelines, ultimately reduces doctors’ freedom to do their jobs well and it limits the options available to patients by putting a damper on any treatment not meeting a clinical guideline.

For more on the safe harbors solution you can read this article from Zeke Emanuel with the Center for American Progress (very much in favor) and/or this one by Randall R. Bovbjerg and Robert A. Berenson with the Urban Institute (favorable but more balanced).  We pretty clearly disagree with some of what these authors suggest, nevertheless these articles are good introductions to the concept and, as I said in our last post, proponents always explain their own ideas best.

This post was written by Justin Donathan.
Justin at Google+

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