I agree with everyone that firing back in our own defense is most likely to be perceived as self-preservation. However, I would like for such an article to spark an ACEP-led debate on shared decision making. Serving our patients is always the best road to travel. In addition, shared decision making, in my opinion, functions as a bedside safe harbor. I avoid the provision of more unnecessary tests in this way and serve my patients better while also reducing my liability by informed discussions and documenting patient preferences.

I included this concept in a chapter in the new edition of Jim Adam’s management text, Emergency Medicine: Clinical Essentials, 2nd ed.

I have considered addressing this concept in ACEP Now. Following this article, I’m certain that I will.

Thank you.

—Kevin M. Klauer, DO, EJD, FACEP, ACEP Council Speaker

Alex, I like [ACEP public relations director Laura Gore’s] opinion. Editorial boards will want to know what we intend to discuss that is new. At root, this remains an argument we have been making for years. Defensive medicine is an expensive and unnecessary part of medical practice that does not benefit patients. But doctors have to do it because of the unreasonable and out-of-control liability environment. Advocating for safe harbors for practicing evidence-based medicine (which is cheaper for society and better for patients), and thereby allowing doctors to be exempt from medical liability if there is the unexpected bad outcome, is not a new concept. Insurers and hospitals will support it along with doctors, but trial lawyers, some consumer groups, and many Democrats will fight it to the death. We can try to get meetings and be more proactive and raise our voice on this, but I think Kevin Klauer’s analysis is correct. Unless there is legislation, or perhaps some hardwired regulation, establishing the safe harbor, it will not be a true safe harbor insulating from liability. Without the legislative or regulatory underpinning, ACEP can say what is the standard of care, but it will then be litigated in each case. I think we might want to get some legal advice from [former CMS administrator and ACA regulatory law expert] Tom Scully’s firm or [association and health care law expert] Rob Portman on any angle there may be for us to truly establish safe harbors either through legislation or regulation under the ACA.

—Dean Wilkerson, JD, MBA, CAE, ACEP Executive Director