Creating Safe Harbors: Rethinking Tort Reform

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More than 75% of physicians will face a medical malpractice claim over the course of their career.1 This experience is often emotionally and financially taxing for health care providers, with legal fees alone averaging more than $17,130 per claim.2 It is therefore not surprising that as many as 90% of physicians report practicing defensive medicine.3 Accordingly, about 2.4% of all health care dollars are spent on liability-related costs annually,4 which — by some estimates — is more than the amount spent on emergency care in the U.S.5 By reducing costs associated with litigation and defensive decision-making, tort reform has the potential to save the health care system $64 billion over the next 10 years.6

Background

For years, tort reform efforts at the federal level have focused on establishing a legal upper limit on non-economic damages, a strategy commonly referred to as “capping.”7,8,9 The aims were to minimize the financial incentives for lawyers to pursue frivolous claims, which would — in theory — lower medical malpractice premiums for providers. However, these reform efforts have generally not been politically viable at the federal level due to the opposition of powerful special interest groups.10 Meanwhile, individual states that have implemented payout caps have experienced mixed results; some failed to demonstrate a clear correlation between these caps and health care spending.11,12,13 Consequently, proponents of reform have recently embraced more sophisticated models.

An alternative approach

One alternative involves the creation of legal “safe harbors.” This approach aims to lower health care costs and improve patient care by protecting physicians who adhere to clinical guidelines. A recent pilot study in Oregon projected that a safe harbor model of tort reform would reduce medical liability costs by over 5%.14,15 Another study found that legal safe harbors would reduce regional practice variation and lead to overall improvements in health care quality.1,26

Saving lives, saving costs act

The concept of utilizing legal safe harbors in medical malpractice reform was recently introduced in the U.S. House of Representatives. The “Saving Lives, Saving Cost Act” (H.R. 4106) was proposed on February 27, 2014 by Representatives Andy Barr (R-KY) and Ami Bera, MD (D-CA). The Act’s primary components include: (1) the requirements for guideline development, (2) the process for removing cases to federal courts, (3) the establishment of independent review panels, and (4) the creation of legal safe harbors for physicians.17,18

Establishment of clinical-practice guidelines

H.R. 4106 requires eligible professional organizations, such as ACEP, to design evidence-based clinical practice guidelines that adhere to the Institute of Medicine’s Standards for Developing Trustworthy Guidelines.19 These guidelines would then be submitted to the Department of Health and Human Services (HHS) for review. The designated professional organization would be responsible for periodically maintaining and updating the guidelines as new evidence emerges. All of this material would be available free-of-charge online through the National Guideline Clearinghouse.

The idea of clinical practice guidelines is not a new concept, and ACEP has already adopted nearly 20 evidence-based policies that influence clinical practice and training, covering topics ranging from pulmonary embolism to opioid use (see www.acep.org/clinicalpolicies).

Removal to federal courts

The majority of medical malpractice cases are currently litigated in state courts. During these proceedings, both sides often hire expert witnesses to testify and, eventually, the judge or jury determines the standard of care on a case-by-case basis. This process of determining the standard of care is limited by the decision-maker’s lack of medical knowledge; the highly variable quality of expert witnesses; and reliance on diverse, and sometimes conflicting, sources of information.

H.R. 4106 attempts to circumvent this dilemma by creating a “safe harbor” for physicians in federal court. Once the case is in a federal district court, the physician would be able to claim adherence to the applicable clinical practice guidelines, after which the court would be required to suspend the litigation and refer the case to an independent medical review panel.

Independent medical review panel

The medical review panel would be com­posed of three experts in the relevant field of clinical practice who are (1) board-certified, (2) recently actively engaged in clinical practice, teaching, or research, (3) approved by the clinician’s specialty society, and (4) preferably from the region where the case originated.

The medical review panel would utilize the applicable clinical-practice guidelines as the standard of care to evaluate physician conduct. This provision would, in effect, create a national standard of care that would avoid the case-by-case approach currently utilized by the state courts. The review panel would also be able conclude that deviations from the clinical practice guidelines were appropriate in individual circumstances.

Safe harbor

If the independent medical review panel determines that the physician acted in accordance with the clinical-practice guide­lines, the panel’s findings would be “received into evidence by the court” involved in the malpractice litigation (HR 4106). The court, in turn, would be obligated to dismiss the case in favor of the physician, unless the plaintiff could demonstrate by overwhelming evidence (“clear and convincing”) that the panel of medical experts erred.17,18

Status of the bill

H.R. 4106 has achieved seven co-sponsors in the U.S. House of Repre­sentatives, in­clu­ding three physicians. The Bill has been referred to the Committee on Energy and Commerce, and the Judiciary Com­mittee for deliberation.17,18 Several organ­iza­tions have already endorsed this legislation, including the American Congress of Obstetricians and Gyne­cologists (ACOG) and the Healthcare Leadership Council.20 This legislation is currently under review by ACEP.

Although there is growing support for H.R. 4106 in the medical community, malpractice reform is opposed by trial lawyer interest groups that are influential in the Democratic Party.21 As a result, it is unlikely that tort reform will be enacted this year given the current composition of Congress.

Other challenges associated with designing safe harbors

One recent analysis of safe harbors completed by the Urban Institute identified several potential difficulties associated with the development of clinical guidelines. The Institute found that the production of guidelines would be time-consuming and financially expensive.22 Additionally, it would be difficult to keep the guidelines up-to-date. The review concluded that “the speed of medical innovation may outpace the capacities of existing researchers and guideline writers to periodically review and revise them.”22

Advocates of the safe harbor approach to tort reform argue that the incentives and resources already exist to support the efficient development and revision of clinical practice guidelines. First, many professional organizations, including ACEP, already have a mechanism for producing and revising clinical guidelines. Additionally, the Affordable Care Act (ACA) now provides financial incen­tives for the development and imple­menta­tion of clinical guidelines and other quality measures.23 For example, under Medicare’s Value-Based Pur­chasing Program, clinical policies that demonstrate improved patient outcomes and safety will receive higher reimbursements.23 Finally, significant federal funding is available for systematic reviews of best practices research through the Patient-Centered Outcomes Research Institute.14,24

Conclusion

Providing legal immunity for physicians who follow established clinical guidelines would create an efficient pre-trial mechanism for dispensing with frivolous litigation. The safe harbor model may also have a variety of other positive consequences, including promoting consistency and best practices through daily use of clinical guidelines, and helping control health care costs by reducing the practice of defensive medicine.

REFERENCES

  1. Jena, A.B., Seabury, S., Lakdawalla, D., & Chandra, A. (2011). Malpractice risk according to physician specialty. New England Journal of Medicine, 365(7), 629-636.
  2. Seabury, S., Chandra, A., Lakdawalla, D., & Jena, A.B. (2012). Defense costs of medical malpractice claims. New England Journal of Medicine, 366(14), 1354-1356.
  3. Sekhar, M., & Vyas, N. (2013). Defensive medicine: A bane to healthcare. Annals of Medical and Health Sciences Research, 3(2), 295.
  4. Mello, M.M., Chandra, A., Gawande, A.A., & Studdert, D.M. (2010). National costs of the medical liability system. Health Affairs (Project Hope), 29(9), 1569-1577.
  5. American College of Emergency Physicians (2013). News room – fact sheets. Retrieved 4/1/2014, from http://newsroom.acep.org/index.php?s=20301&item=29928
  6. United States. Cong. Congressional Budget Office. Tort Reform. Oct. 9, 2009. Retrieved 4/1/2014, from www.cbo.gov/sites/default/files/cbofiles/ftpdocs/106xx/doc10641/10-09-tort_reform.pdf
  7. Oppel Jr., R.A. (12/17/2003). Bush enters fray over malpractice. New York Times. Retrieved 4/1/2014, from www.nytimes.com/2003/01/17/us/bush-enters-fray-over-malpractice.html?ref=malpractice
  8. Lohr, S. (2/27/2005). Bush’s next target: malpractice lawyers. New York Times. Retrieved 4/1/2014, from www.nytimes.com/2005/02/27/business/yourmoney/27mal.html?adxnnl=1&ref=malpractice&adxnnlx=1396425409-Tyd2rG5ez/BzriDE
  9. S.354 – 109th congress (2005-2006): Help efficient, accessible, low-cost, timely healthcare act of 2005. Congress.gov | Library of Congress. Retrieved 4/1/2014, from http://beta.congress.gov/bill/109th-congress/senate-bill/354
  10. Stolberg, S.G. (5/9/2006). Senate rejects award limits in malpractice. New York Times. Retrieved 4/1/2014, from http://query.nytimes.com/gst/fullpage.html?res=9B0DE1DB163EF93AA35756C0A9609C8B63&ref=malpractice
  11. Kaplan, T. (5/30/2011). Lessons for Albany on malpractice limits. New York Times. Retrieved 4/1/2014, from www.nytimes.com/2011/03/25/nyregion/25malpractice.html?ref=malpractice
  12. Ramshaw, E. (12/18/2010). State’s tort reform makes lawyers wary of taking on patients. New York Times. Retrieved 4/1/2014, from www.nytimes.com/2010/12/19/us/19tttort.html?pagewanted=2&ref=malpractice
  13. Liptak, A. (5/6/2005). Go ahead. Test a lawyer’s ingenuity. Try to limit damages. New York Times. Retrieved 4/1/2014, from www.nytimes.com/2005/03/06/weekinreview/06lipt.html?ref=malpractice&_r=1&
  14. Emanuel, Z., Spiro, T. & Calsyn, M. Reducing the cost of defensive medicine. Center for American Progress. Retrieved 4/1/2014, from www.americanprogress.org/issues/healthcare/report/2013/06/11/65941/reducing-the-cost-of-defensive-medicine
  15. Smith, J. (01/2013). AHRQ medical liability & patient safety planning grant: Final progress report. Oregon Health Policy and Research. Retrieved 4/1/2014, from www.oregon.gov/oha/OHPR/PSDM/AHRQ_MLPS_Report.pdf.
  16. Frakes, M., & Jena, A.B. (1/2014) Does medical malpractice law improve health care quality? National Bureau of Economic Research. Retrieved 4/1/2014, from www.nber.org/papers/w19841
  17. H.R. 4106 – 113th Congress (2013-2014): Saving lives, saving costs act. Congress.gov | Library of Congress. Retrieved 4/1/2014, from http://beta.congress.gov/bill/113th-congress/house-bill/4106?q={“search”:[“H.R.+4106”]}
  18. H.R. 4106 (2014). GovTrack.us. Retrieved 4/1/2014, from https://www.govtrack.us/congress/bills/113/hr4106
  19. Committee to Advise the Public Health Service on Clinical Practice Guidelines, Institute of Medicine, Graham, R.L., Michelle Mancher, Wolman, D.M., Sheldon Greenfield, Earl Steinberg. (5/2011). Clinical practice guidelines we can trust. Washington, D.C.: National Academies Press.
  20. Congressman Andy Barr Press (3/4/2014). Barr and Bera introduce bipartisan legislation to improve patient health and lower healthcare costs. Retrieved 4/1/2014, from http://barr.house.gov/media-center/press-releases/barr-and-bera-introduce-bipartisan-legislation-to-improve-patient-health
  21. Stolberg, S.G. (6/15/2009). Obama Open to Reining in Medical Suits. New York Times. Retrieved 4/1/2014, from http://www.nytimes.com/2009/06/15/health/policy/15health.html?_r=0
  22. Bovbjerg, R.R., & Berenson, R.A. (3/2012). The value of clinical practice guidelines as malpractice “safe harbors.” The Urban Institute |Timely Analysis of Immediate Health Policy Issues. Retrieved 4/1/2014, from www.urban.org/publications/412548.html
  23. Davis, J. (10/4/2012). Achieving key quality and patient safety measures of the Affordable Care Act. Becker’s | Infection Control and Clinical Quality. Retrieved 4/1/2014, from www.beckershospitalreview.com/quality/achieving-key-quality-and-patient-safety-measures-of-the-affordable-care-act.html
  24. Supported research (2014). Patient-centered Outcomes Research Institute. Retrieved 4/1/2014, from www.pcori.org/research-we-support/landing
Benjamin Savitch, MD, JD

Benjamin Savitch, MD, JD

University of Chicago Hospitals, Chicago, IL
Benjamin Savitch, MD, JD

Latest posts by Benjamin Savitch, MD, JD (see all)

Natalie Kirilichin, MD

Natalie Kirilichin, MD

University of Chicago Hospitals, Chicago, IL
Natalie Kirilichin, MD

Latest posts by Natalie Kirilichin, MD (see all)

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