Law Would Grant 'Safe Harbor' to Docs Who Follow Guidelines

From (c) Medscape, March 6, 2014

http://www.medscape.com/viewarticle/821588?src=wnl_edit_medn_wir&spon=34

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Physicians who are Medicare and Medicaid providers would be granted increased liability protection if they can demonstrate that they followed established clinical guidelines, according to a bill introduced in Congress this week.

The Saving Lives, Saving Costs Act, introduced by Reps. Andy Barr (R-KY) and Ami Bera (D-CA), would create a "safe harbor" for physicians who follow best practice guidelines. Physicians also could request that state-level malpractice suits be moved to federal courts.

"Rather than being directed by Washington, the guidelines will be developed by the physician community based on the best available scientific evidence," according to a joint statement by the legislators. "Guidelines should be developed through a transparent process by a knowledgeable, multidisciplinary panel of experts."

A physician who is being sued could "argue that he or she adhered to the relevant practice guidelines, which would cause a suspension in the proceedings while an independent medical review panel investigates."

If the panel determines that the physician conformed to the guidelines, or that failure to conform was neither the cause nor the proximate cause of the alleged injury, the case would be dismissed pending clear and convincing evidence that the medical review panel was in error, the statement said.

Physicians would be allowed to use the panel's findings as an affirmative defense in court. The bill also specifies that physicians whose care varies from guidelines are not automatically held liable.

"Congressman Bera and I introduced the Saving Lives, Saving Costs Act because there is nothing partisan about finding practical solutions to improve patient health outcomes," said Rep. Barr. "Americans deserve healthcare reform that will help lower the cost of care and protect the sacred patient–doctor relationship. Our bill will lead to better, more affordable, and evidence-based patient care by removing the need for physicians to worry about practicing defensive medicine, instead allowing them to focus on their patients' actual needs."

"The bipartisan Saving Lives, Saving Costs Act is a practical way to bring down the skyrocketing cost of healthcare and to make the system work better for patients that people from both parties can get behind," said Rep. Bera. "As a doctor, I know that physicians want to do what's best for their patients, and promoting evidence-based medicine will help us do that."

Professional medical organizations that have published clinical practice guidelines would submit them to the Secretary of Health and Human Services within 6 months of the bill's enactment. The secretary would then approve and publish the guidelines.

An independent medical review panel will be composed of 3 members who are experts in the relevant field of clinical practice. They would be approved by their specialty societies and reside in the same region where the case was brought, when possible.

Support, With Some Reservations

The American Congress of Obstetricians and Gynecologists (ACOG) applauded the proposed law and said it would "help avoid frivolous lawsuits and ensure that obstetrician-gynecologists can continue to treat their patients," ACOG said in a statement.

"Clinical practice guidelines, like those issued by ACOG, provide ob-gyns with top-quality recommendations based on scientific research and input from expert obstetrician-gynecologists," said ACOG President Jeanne A. Conry, MD, PhD. "It is essential that physicians who follow best practices in patient care be protected from liability."

The Physician Insurers Association of America (PIAA), which represents physician-run malpractice insurers, also endorsed the law's goals, but with some reservations. "We believe that the legislation raises concerns about whether the guidelines it envisions will provide adequate protection for both patients and providers in the long run," PIAA President and Chief Executive Officer Brian K. Atchinson told Medscape Medical News. "The bill also would potentially lengthen the claims adjudication process, thus delaying the resolution of claims and adding to the costs of the medical liability system. It is our feeling that this concept requires more vetting, and we are open to helping craft an improved bill."

The American Academy of Family Physicians (AAFP) is still reviewing the proposed law. "However, the AAFP has long supported medical liability reform.... The current system has failed both patients and the medical community," AAFP President Reid Blackwelder, MD, told Medscape Medical News. "Too few patients who are actually injured by medical care receive just compensation, while frivolous lawsuits, excessive damage awards, and exorbitant attorneys' fees push malpractice premiums up and prompt defensive medicine practices that increase the cost of health care."

The American Academy of Orthopaedic Surgeons (AAOS) said it supports the concept of a safe harbor for physicians who follow established and approved clinical practice guidelines. "While there is still a lot to do, this bill takes positive steps towards reducing medical malpractice and insurance fraud, which is important in ensuring that physicians can continue to provide the highest quality patient care," Tom Fleeter, MD, Chair, AAOS Medical Liability Committee, told Medscape Medical News.

The American Medical Association (AMA) doesn't have a position on the proposed law. AMA "supports proven liability reforms such as those enacted in California and Texas, as well as funding to test the effectiveness of innovative alternative liability reform proposals at the state level, including health courts, early offers and safe harbors for the practice of evidence based medicine," it said in a statement.