We hoped the legislation would determine if defensive medicine could be reduced by providing a safe harbor for physicians who complied with guidelines from specialty organizations. The idea was that physicians could use adherence to guidelines as an affirmative defense in a medical malpractice lawsuit. Emergency medicine was chosen because everyone thought it was responsible for lots of defensive medicine.

The law required that 50 percent of the specialists had to agree to participate prior to enrolling the specialty in the demonstration project; more than 400 physicians in four specialties joined. Within two years, 19 practice parameters for emergency medicine, obstetrics and gynecology, radiology, and anesthesiology were developed by medical specialty committees composed of physicians, health professionals, patients, and insurers. The adopted guidelines were patterned after those developed by national organizations and the underwriting guidelines of the Medical Mutual Insurance Company of Maine, the state’s largest medical liability carrier.

The protocol adopted by emergency physicians regarding the use of cervical spine X-rays best illustrated the goal of reducing defensive medicine and the associated costs. The cervical spine guideline applied to frequently seen ED patients: victims of motor vehicle accidents brought in immobilized on a backboard by EMS. The pre-1990 emergency physician, fearing legal consequences, would routinely obtain cervical spine films before removing the patient’s cervical collar regardless of clinical findings. However, by 1990, studies had shown that in a conscious, unimpaired patient lacking significant injury, the absence of neck pain or neurologic signs reduced the likelihood of a cervical fracture to virtually zero and therefore X-rays were not necessary. The Maine cervical spine practice parameter defined the indications for cervical spine films, an example of evidence-based medicine that could provide physicians with protection to make an appropriate clinical decision without fear of litigation.

The legislation provided that specialists would develop the guidelines but required the Board of Licensure in Medicine to accept them as state regulations to ensure the parameters would have the force of law when compliance was asserted as an affirmative defense. The board adopted all 19 guidelines, and the rules became effective Jan. 1, 1992, establishing a legal standard of care for malpractice claims occurring after that date.

Adoption of the guidelines did not mandate that physicians adhere to the guidelines; legislation only mandated that guideline adherence could be asserted by a participating specialist as an affirmative defense. However, it clearly stated that failure to abide by the guideline could not be used against the physician unless the physician introduced the guideline as an affirmative defense. This provision caused trial attorneys to oppose the original bill.