Instead of an arbitrary cap on the amount of damages that may be awarded in malpractice suits, the Center for American Progress proposes reforming medical malpractice policies to protect physicians and reduce the cost of defensive medicine.
Defensive medicine or the practice of ordering excessive and unnecessary medical tests and procedures to avoid a potential malpractice suit has become more common in a litigious society. But its use increases healthcare costs without improving health outcomes, the Center said in an announcement.
The think tank issued a report this week advocating a "safe harbor" in medical-malpractice litigation to protect physicians if they:
- Document adherence to evidence-based clinical-practice guidelines
- Use qualified health information-technology systems
- Use clinical decision-support systems that incorporate guidelines to assist them with patient diagnoses and treatment options
Furthermore, the Center suggests patients who bring malpractice claims must show their physicians did not meet the standard of care when treating their specific conditions. Under this safe harbor, guidelines would define the legal standard of care. Patients could still present evidence that the guidelines weren't applicable to their situation or that their physicians did not follow the guidelines.
"Reforming medical malpractice law is one of the unfinished items leftover from health care reform," said Ezekiel Emanuel, co-author of the report and senior fellow at the Center for American Progress. "A safe harbor solution both relieves physicians of frivolous lawsuits and promotes quality health care. Implementing a safe harbor plan is an excellent solution that garners bipartisan support and unites physicians and patients in meaningful reform."
To encourage state implementation of safe harbors, the brief proposes financial incentives for states that implement this reform and are able to reduce both Medicaid costs and patient injuries. Doctors in the state also would need to meet performance goals on the quality of care that is subject to the safe harbor.