Thursday, April 2, 2015

Are guidelines a "safe harbor" against malpractice suits?

Several months ago, 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 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.

The lawyer 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. But I can get a jury to see that very differently. A lot of physicians will be paying out before long, as will hospitals…Testing is what makes diagnoses, saves people.

"I have a pretty set script here. To the effect of ‘so Doctor, you just didn’t care enough about my client to order this test?’ Or ‘so my client was just a statistic, just a percentage to you?’… [Juries] love that stuff!”

A post I wrote last year about a supposed set of common goals shared by lawyers and surgeons had these comments from another plaintiff's lawyer.

Regarding the use of guidelines as a malpractice defense which some have labeled a "safe harbor," the lawyer said, "The safe harbor concept becomes unacceptable if it allows guidelines to be used as a 'get out of jail free' card. Guidelines must be useful in exonerating and implicating clinician wrongdoing." My interpretation of what he said was that it's OK to use a guideline to prove a clinician did wrong, but following guidelines should not be a fail-safe defense strategy.

Just for fun, I looked up HR 1406's history. It was introduced on February 27, 2014 and immediately referred to three committees—the Energy and Commerce Committee, The Judiciary Committee, And the Subcommittee on Health. On March 20, 2014 it was referred to the Subcommittee on the Constitution and Civil Justice, and it hasn't been heard from again.

A website that tracks bills lists its status as "Died in a previous Congress."

I don't think you will be sailing to a safe harbor any time soon.


Brad F said...

Here's some data to go with your post:


Skeptical Scalpel said...

Brad, thanks. Interesting stuff and even better, it supports my position.

CountryDoc said...

As with other programs, 'Choosing Wisely' started out as a 'cost saving' initiative. However, with 'patient centred care' there are other costs due to 'over-diagnosis' causing needless anxiety and further needless expensive test as 'follow-up'. Importantly, the policy includes 'discussion with the patient', which should mitigate bogus law suits based on greed.

Skeptical Scalpel said...

Discussion might mitigate lawsuits as long as a real discussion was held and documented. Emphasis on "might."

frankbill said...

Hard to have discussion with us the patients when provider doesn't know the diagnosis.

frankbill said...

If you want a safe harbor against malpractice suits work for the VA.

VA providers can not be sued. One can sue the VA but very hard to win.

The VA does have a process in place where if one is harmed by medical treatment you can apply for service connected disability. If you are able to prove the VA treatment caused you harm then the VA will decide the % of harm. At 100% you will get around $3000 a month.

Vamsi Aribindi said...

Dr. Scalpel,

I don't think we should push for safe harbors, lest the law of unintended consequences come back to bite us.

The reality is this: if we establish safe harbors, what does that mean for everyone who leaves the metaphorical harbor? Are they just out of luck?

How long before policies at hospitals and in ACOs and by malpractice insurance carriers announce that those doctors who do not follow such guidelines and harbors will be dropped from the policies, or otherwise financially penalized?

Guidelines are ultimately just that- guidelines. They frequently must be individually adapted. These safe harbors may become gilded cages that keep us from caring for our patients.

Vamsi Aribindi

Skeptical Scalpel said...

Vamsi, I agree. Any attempt to create a safe harbor will not work and the law will be used as a hammer against us.

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