Can 'safe harbor' laws stop defensive medicine?

Time will tell whether protecting physicians from liability if they follow clinical guidelines is the solution to increasing healthcare costs. Four big hurdles must be overcome for meaningful change to occur.

Defensive medicine is partly to blame for the increasing cost of healthcare, and although efforts to create legal “safe harbors” may not solve the cost issue directly in the short term, they may offer some solutions to defensive medicine challenges, according to a new report from the Urban Institute.

Physicians who live in fear of liability and malpractice claims may “gold-plate” care, over-treat, or diagnose conditions to protect themselves, say the report’s authors. Consequently, giving clinicians “safe harbor” protection from medical malpractice liability when they follow clinical practice guidelines could cut wasteful spending, encourage adherence to quality measures, and serve as a bipartisan compromise in the battle over tort reform, according to the report.

No state currently has operational safe harbors, and some hurdles to overcome in instituting them include:

the time and expense of producing guidelines;

the inability to keep guidelines up to date with rapidly changing medical innovations;

doctor resistance to following guidelines, and

the difficulty of indicating which care should and should not be given.

“By their nature, guidelines provide guidance on what typically constitutes the best care for an entire population. It is therefore hard to use a guideline to deny care to a particular patient, who can always argue that their case is an exception to the general rule,” the report notes. “Accordingly, liability safe harbors are unlikely to contribute much in the near term to bending the curve of increasing medical spending.”

Safe harbors may be better used as supplemental programs to general reforms that target overuse and are based on consumer education or incentives, provider risk-sharing, health plan controls, or government directives, the report concludes.

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