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“Safe Harbor” For Doctors, Caps, Health Courts and Other Panaceas Are Not the Answer to Rising Health Care Costs

Reform of the medical malpractice laws has been a subject of national debate for many years. These proposed reforms are premised on the idea that physicians should not be subject to the same scrutiny as all other wrongdoers and should be accorded special treatment in litigation as to possible wrongdoing. Variations of this premise include caps on damages, health courts and the latest variation, immunity for those who follow clinical or evidence based guidelines.

This latest idea is simply a more sophisticated version of the immunity doctrine specific to physicians. Under this doctrine, any physician who demonstrated that he or she followed the recommended course of treatment for a specific condition or illness, would be accorded a “safe harbor” and could not be held liable for their conduct.

The use of the term “safe harbor” at all is a misnomer. What the concept actually embraces is immunity for all wrongdoing, no matter how severe the patient’s injury or even death, if the so called clinical practice guidelines are followed.

Like previous attempts to shield physicians from the severity of their professional mistakes, however, this proposal is equally wrong. First, the proposal fails to recognize the most important issue in medical malpractice litigation, that is, that physicians do make mistakes which cost patients lives and well being. Instead of coming up with creative proposals to limit liability or the extent of the physical and emotional injuries caused by those mistakes, physicians need to finally abandon their long entrenched resistance to the concept of human fallibility and instead, as a profession, actively address how to reduce medical errors and ensure patient safety.

Second, physicians need to understand that their professional status deserves no special treatment under the law. They are and should be subject to the same calculation of damages as any other wrongdoer, be it corporate CEO or working man, based on the injuries or damages they cause. That is why caps on damages have fundamentally failed in any states that have adopted them, the inherent inequality of limiting an award based on the status of the wrongdoer instead of on the extent of the injuries caused.

Likewise, the concept of health courts, special proceedings conducted by physicians instead of ordinary citizens, is flawed. No other category of wrongdoer in our democracy is judged by a court of its own making, rather than by a jury of ordinary citizens as conceived by our Founding Fathers in the Declaration of Independence.

Third, the substitution of legal standards with clinical guidelines is unfair since these guidelines, to the extent they even exist for a particular condition, are written for the average patient and do not allow for the huge variation among patients and their conditions. These variables make it unsuitable at best and dangerous at worst to rely on general guidelines for treatment decisions.

Like any one who has been sued, in a court of law, physicians are entitled to present their best defense to a claim of malpractice. The present jury system affords them the ability to present not only their own medical defense of their actions but that of a highly qualified medical expert on their behalf as well. Contrary to the beliefs of many, physicians are not at any disadvantage in the courts of law. In fact, their inherent advantages in the courts are borne out by the vast majority of jury verdicts exonerating their actions. In other words, the system works, particularly for physicians, and no special laws are needed for them.

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