Why 'Choosing Wisely' Won't Protect You in a Lawsuit

William Sullivan, DO, JD


October 27, 2017

In This Article

Safe Harbors Are Meant to Protect

Safe harbors are legislative guidelines created to protect practitioners from lawsuits. The theory behind safe harbors is that physicians often order low-yield testing to avoid being sued for either missing an uncommon diagnosis or for missing an uncommon presentation of a more common diagnosis.

If a medical guideline used in a safe harbor recommends certain medical care and the physician follows that guideline, the safe harbor statute would prevent the physician from being sued if a bad outcome occurs. Presumably, safe harbors decrease the amount of "defensive medicine" currently being practiced while at the same time standardizing management of patients.

In the past, several states have created pilot projects to determine whether adherence to statutory practice guidelines would have any effect on medical malpractice cases. One of the first such projects was Maine's Medical Liability Demonstration Project (Me. Rev. Stat. Ann. Title 24 2971-2979 [repealed]).[10] In this program, medical advisory committees created practice guidelines applicable to four specialties. Anesthesia guidelines included preoperative lab testing, proper documentation, and intraoperative monitoring. Emergency medicine guidelines highlighted when to obtain cervical spine x-rays in trauma patients and the procedure used to transfer patients to other hospitals. Obstetrical guidelines included when to perform cesarean sections with failure to progress, and how to manage intrapartum fetal distress. Radiologic guidelines addressed screening mammography and antepartum ultrasounds.

If a physician chose to participate in the program and was later sued for medical care relating to the guidelines, the physician would be able to use the adherence to the guidelines as an affirmative defense in a medical malpractice case, essentially making the physician immune from liability. The Maine project continued for nearly 10 years but was eventually repealed after a review of the data from the project showed no medical malpractice cases in which the affirmative defense was used, and showed that there was no significant effect on malpractice costs or on the number of malpractice cases filed in the state.

The number of malpractice payments per year in Maine was unfortunately low, making it difficult to determine whether low sample size may have had an effect on the results. However, National Practitioner Databank data show that the number of medical malpractice payments in Maine increased from 35 per year during the 10 years that the project was in effect to 43 per year in the 10 years after the project was discontinued, a 23% increase.

The appeal of using statutory guidelines as a safe harbor is that, for purposes of a medical malpractice action, it is difficult for an expert witness to allege that the physician was negligent if the physician adhered to the statutory guidelines. Without an allegation of negligence, the physician is protected from legal liability because negligence is a prerequisite for a medical malpractice action. However, the adverse impact of using statutory guidelines as a standard of care is that failure to include one minor aspect of a long safe harbor checklist may cause the physician to lose immunity under the statute. If physicians become more concerned with checking statutory requirements than with providing a reasoned patient evaluation, it may raise a concern as to whether "checkbox" medicine is truly in the best interest of the patients.

In addition, any medical treatment that deviates from the statutory guidelines may create an inference that the physician's actions fell outside the standard of care. The Maine Medical Liability Demonstration Project specifically considered this issue by prohibiting plaintiffs from using a practitioner's deviation from the guidelines as evidence during litigation.


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