Health care costs too much in the United States. One key problem is gold-plating of services driven by physicians’ fears of lawsuit for failure to do everything possible for patients. A notable example of such overutilization is increasingly routine ordering of advanced imaging or other tests. Reliable, evidence-based clinical guidelines promise to address low-value utilization by authoritatively stating standards of good care in advance.
Some thought leaders among Democrats seek to use guidelines to side step the routinized political battles over malpractice reform. Republicans have been saying that defensiveness and other problems justify caps and other limits on medical liability. Belittling defensiveness as a problem, Democrats have defended and promoted liability as an incentive for good care.
Defensiveness is a problem, acknowledge proponents of guidelines to reform liability. But it can be fixed simply by legislating that adherence to reliable guidelines constitutes a “safe harbor” against lawsuits for failure to do more. Safe harbors would remove the motivation for defensiveness and also any need to accept Republicans’ caps and other limits. Given the political stalemate in Washington, the idea is worth thinking through.
Good guidelines are a good idea, especially to improve quality of care, which is their main policy driver. And, because guidelines hold promise for cutting wasteful defensiveness, they have superficial appeal as a liability reform. However, practical feasibility limits the reach of safe harbors, as explained in a recent policy brief from The Urban Institute for the Robert Wood Johnson Foundation.
One set of practical challenges comes from the difficulties of creating—and updating—enough reliable guidelines to change caregivers’ now reflexive defensiveness. Maine tried twenty years ago and gave up in large part because few guidelines were created or used. Another set of challenges arises in actually implementing guidelines in lawsuits. Among numerous examples, the targets of guidelines seem mismatched to the grounds of liability claims. And there will always be claims that a particular patient was an exception to the general rule of a guideline.
Moreover, no single silver bullet can cure defensive over-utilization because gold-plating of care is driven by many factors. Patients and jury members alike believe that more is better, insurance pays for it, and medical culture accepts it. Using guidelines for population-based targeting of outlier clinical practices seems much easier to effectuate than using them to reform liability’s case by case decisions in which judges and juries cannot take a broader perspective.
The legal influence of guidelines will grow naturally if changes in payment rules or responsibilities over time change provider or patient thinking about the desirability of additional procedures, and more advanced information technology may help. Meanwhile, crafting appropriateness guidelines that specifically target overutilization promise some reduction of specific defensive practices.
Malpractice fears remain a constant irritant, though far less so than when liability premiums were soaring a decade ago. As for many other policy conundrums today, there’s no lack of reasonable solutions for malpractice shortcomings, but partisan gridlock blocks them. Unlike other policy gridlocks, however, splitting the difference here would miss many of the best solutions. Both patients and caregivers suffer under the current malpractice “system,” but the parties claiming to represent their interests simply advocate for more or less of that same inadequate system. Both would be better served by some nonpartisan tweaking, including some appropriateness guidelines, or by a quite different system.
Randall R. Bovbjerg, J.D., is a senior fellow in the Health Policy Center of The Urban Institute. A policy analyst and lawyer, he specializes in health insurance and reform, reinsurance, the safety net for the uninsured, and legal issues in health care, notably relating to medical injury.