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

William Sullivan, DO, JD


October 27, 2017

In This Article

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Congress is currently poised to revisit safe harbors with the Saving Lives, Saving Costs Act (H.R. 4106) sponsored by Representative Andy Barr from Kentucky.[11] Under the Act, professional organizations would submit clinical practice guidelines to the Secretary of Health and Human Services who then selects guidelines to be used under the Act and publishes the guidelines online. If an eligible physician alleges that a patient's care adhered to an applicable clinical guideline under the Act, the physician may transfer a state malpractice action into federal court, where the case will be reviewed by a three-physician independent medical review panel.

Favorable findings of the review panel can be used as a basis to dismiss a claim against the physician. If a plaintiff pursues a case against a physician after a review panel finds in the physician's favor and the physician subsequently wins the case, the plaintiff may be forced to pay for the physician's costs and attorney's fees.


Guidelines are created for many purposes. The intent of a guideline significantly affects whether the guideline will protect a physician against medical malpractice risk. Guidelines relating to payment issues should not be used for clinical or medicolegal purposes without strong clinical research supporting their conclusions. While clinical practice guidelines may be useful for both clinical and medicolegal purposes, the recommendations should be compared with current medical literature to determine whether the guidelines constitute appropriate medical care.

Statutory guidelines and safe harbors significantly reduce a practitioner's malpractice risk and also provide a strong deterrent to frivolous lawsuits. However, the decreased risk must be weighed against the inference of negligence that occurs if a statutory guideline is not followed, and against the potential transition of medical practice from a healing art to an exercise in checking all of the appropriate boxes to avoid liability.

The most judicious use of guidelines is to treat them as general outlines subject to change as our knowledge of medicine evolves, rather than as strict directives of medical diagnosis and management.


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