N Engl J Med. 2017 May 11;376(19):1806-1808. doi: 10.1056/NEJMp1701174. Epub 2017 Mar 29.

Medical Liability - Prospects for Federal Reform.

Mello MM1, Kachalia A1, Studdert DM1.

Author information

1

From Stanford Law School (M.M.M., D.M.S.) and the Departments of Medicine (D.M.S.) and Health Research and Policy (M.M.M.), Stanford University School of Medicine, Stanford, CA; and the Department of Medicine, Harvard Medical School and Brigham and Women's Hospital, Boston (A.K.).

"How promising are these reform ideas? Safe harbors for physicians who adhere to evidence-based practice is an idea that dates back to the 1980s. It has attracted interest from health care provider groups, health insurers, and health policy experts. Theoretically, it could reduce the practice of defensive medicine while encouraging wider adherence to guidelines — responses that harmonize with improving the quality of care.

However, the limited evidence base does not suggest that guideline-based safe harbors are effective in reducing liability claims or costs (see table). In states that have tried them, they do not appear to have had an impact, and the programs have withered. One key reason is the surprisingly small overlap between aspects of care disputed in malpractice litigation and aspects addressed by CPGs. One recent simulation study showed that safe harbors would have eliminated defendants’ malpractice payments in less than 1% of claims; in 85% of cases no guideline applied, and when one did, physicians generally prevailed regardless.3 A surge in availability and use of CPGs could enlarge the overlap, but the effects of safe harbors on liability costs would probably be modest at best. Nevertheless, safe harbors are appealing for other reasons: they promote quality of care and safety by providing incentives for practicing evidence-based medicine, and they may accelerate claim resolution."