Howard's Daily: Medical 'Safe Harbors' Require Expert Health Courts

Restoring reliability to the medical malpractice system, Peter Orszag (former head of OMB under Obama) periodically reminds us, could avoid the vast waste of "unnecessary tests and treatments" ordered only because doctors "believe it will protect them from a lawsuit."

This week on Bloomberg View, Orszag suggests that the solution is to create "safe harbors" for doctors who follow national guidelines. An added advantage is that doctors will feel compelled to keep up with national best practices instead of following "customary-practice standards" of the local community.

These strike me as good ideas with two very significant caveats:

First, who decides what qualifies for the "safe harbor"? Each patient presents a complex set of facts -- say, a sore throat, aching ear, a slight fever. What if it escalates into a debilitating disease? Who decides whether the advice of taking two aspirin was appropriate? With the benefit of hindsight, any adverse medical event might have been handled differently. Certainly any lawyer could readily conjure up reasons why his client's situation doesn't quite fit the criteria of a safe harbor. So... does a jury decide? Do you think doctors would trust a jury to reliably sort out what qualifies for a safe harbor, while looking at a plaintiff who suffered from a terrible disease? There's not a chance, in my view, that doctors would trust that system. Defensive medicine would continue to waste tens of billions every year.

Safe harbors won't work without a reliable decision-maker. That's why America needs expert health courts -- where specially-trained judges, advised by neutral experts, decide each case with written rulings that strive to apply best practices to each fact situation. The health court proposal, developed by Common Good and the Harvard School of Public Health, has been endorsed by a broad coalition of doctors, patient safety experts, consumer groups, and every budget deficit commission. See here and here.

The second problem is that safe harbors will not cover the universe of malpractice disputes, and won't be relevant to many cases. Some patient situations will be completely unique. Do those cases go back to the current ad hoc jury-by-jury system, which has an error rate of about 25 percent? Will doctors really stop practicing defensive medicine when they're not sure which cases will qualify? Here as well, special health courts can fill the gap. Even if a case does not fit within the safe harbor, doctors will be able to trust that an expert health court will strive to decide in accord with best practices.

The bottom line: Safe harbors are a good idea to incentivize doctors for better care, but won't be effective to do that, or to end defensive medicine, without an expert health court that doctors trust.

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