We can reduce cost with a simple pen stroke (oversimplification), but why should the medical legal burden created by following a guideline fit squarely on the shoulders of the providers just trying to follow it?

I think this is an important question that could be posed in the lay press and to legislators.

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

Hence the need for fair compensation with shared risk and shared payout by all of society, not just the provider.

—Alexander M. Rosenau, DO, FACEP, ACEP President

Could this be a case where we seek a cap for non-economic damages?

—Rebecca B. Parker, MD, FACEP, ACEP Board Member

Cogent points, absolutely agree! This conversation needs to be aired. It’s time for an honest debate about what is appropriate and needed, what is not, and how clinical providers can be free to strike that balance for the overall good of society. Answer: Choosing Wisely and Safe Harbors!

—James M. Cusick, MD, FACEP, ACEP Council Vice Speaker

Becky,

It could. However, the medical legal community’s acceptance of such caps is lukewarm, and their effectiveness is debatable. In addition, economic damages (special damages) come from hospital bills, lost future earnings, etc., and they can be huge. So I would not limit our protection to non-economic damages (ie, severe pain, disfigurement, loss of consortium, etc.). I think we really are entitled to true indemnification when we follow such clinical policies correctly and a bad outcome occurs.

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

I think the problem is even more basic than this.

Society does not fathom the actual cost of not having safe harbors; most people just think it is doctors whining and wanting a better deal for ourselves.

They do not realize that the cost of medical tort to society is at least $300 billion a year (8 percent of what we spend on health care, between direct and indirect costs).

There is an economic argument that needs to be made since every one of those dollars is paid by consumers of health care.

This is true cost savings, not just making it easier for physicians to practice.

—Vidor E. Friedman, MD, FACEP, ACEP Board Member

Apropos to this week’s discussion about safe harbors, I wanted to let you know that two members of the U.S. House of Representatives, Rep. Ami Bera (D-CA) and Rep. Andy Barr (R-KY), have introduced legislation in the House that would establish safe harbors for physicians “who can demonstrate they followed the recommended best practices….” Those recommended best practices will be developed by the physician community based on the best available scientific evidence. The bill, HR 4106, was introduced yesterday and has been referred to the House Energy & Commerce Committee and the House Judiciary Committee.