I love science and math, but you can take history, wars, dates, names, and places: they are just downright boring—at least, that is, until it involves time warps, time travel, wormholes, and other really cool stuff like the Déjà Vu Reality Show of living 70 years. At ACEP’s 2014 Leadership and Advocacy Conference (LAC) this May, I sat in a Washington, D.C., hotel ballroom surrounded mostly by old ACEP friends (even a few old friends I have yet to meet) and slowly slipped into a wormhole that took me back in time and space to Maine in my early years of practice.

In D.C., we were being briefed on the Safe Harbor Liability Protections (H.R. 4106) when the wormhole opened. The speaker’s voice droned on, “ACEP supports the Saving Lives, Saving Costs Act, introduced by Reps. Andy Barr (R-Kentucky) and Ami Bera (D-California), which provides increased liability protection in the form of a legal safe harbor to physicians who can demonstrate they followed clinical practice guidelines/best practices developed by a multidisciplinary panel of experts…. The case would be heard by an independent medical review panel of professionals in the relevant field of clinical practice.”

During the 1980s, like the nation as a whole, Maine experienced marked increases in medical malpractice suits and professional liability premiums. These suits were partially responsible for the rising cost of health insurance as physicians practiced more defensive medicine, ordering tests and procedures primarily to avert liability claims. To protect the 1.2 million people in a state with only 2,000 physicians, the Maine legislature enacted tort reform legislation, much of which was supported by the Maine Trial Lawyers Association.

In 1987, I helped lobby for pretrial medical malpractice screening panels, legislation that subsequently passed into law. Then I had the honor of testifying in front of several panels and even serving on a few. And, surprise, surprise, between 1988 and 1991, medical malpractice insurance premiums in Maine dropped by 22 percent.¹ By 2003, Maine ranked 46th in the nation, with 9.2 paid claims per 1,000 physicians (36 total claims paid).²

Sitting in our nation’s capital, I was transported back in time to 1990 Maine where I worked with Maine Chapter ACEP, other medical specialty societies, the Maine Medical Association (MMA), the Maine Board of Licensure in Medicine, and the Maine Bureau of Insurance. We prevailed on the Maine legislature to pass Chapter 26: Medical Liability Demonstration Project (Practice Parameters and Risk Management Protocols).³

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.

This “safe harbor” liability demonstration project, initially designed to run until 1995, was eventually extended to 1998. Unfortunately, the statute was never tested at the trial or appellate court level. In eight years, not a single case was filed in Maine courts in which a physician used the affirmative defense, and the demonstration project was allowed to expire in 2000.

Back through the wormhole to 2014, where guidelines abound and 19 guidelines in four specialties seem paltry by comparison. Perhaps the protocols did not cover enough medical conditions to generate even a few malpractice cases, perhaps eight years was not long enough, perhaps Maine was too small a sample size, or perhaps just the presence of the statute prevented claims.

We will never know if there was a case in a which a guideline had been followed and the defense attorney chose to defend the case in a traditional way rather than asserting the affirmative defense and ending up in the state’s supreme court testing this unique approach. However, one concern was put to rest. Never, due perhaps to clear language in the statute, were the guidelines used against a physician for failure to adhere to them.

Physicians who participated in the demonstration project as well as the MMA⁴ consider the project a success. Maine physicians developed and distributed guidelines to all physicians in the involved specialties, encouraging a more uniform approach to medical practice. We educated observers around the country about the relationship between practice guidelines and liability protection. And the Maine legislature clearly stated that physicians who adhere to established guidelines should be protected from claims of medical malpractice.

Maine’s Medical Liability Demonstration Project did not prove whether safe harbors could decrease defensive medicine costs, but it did pave the way for a national experiment 25 years later. What are we waiting for? Isn’t it time to determine once and for all whether we can cut medical costs by adhering to evidence-based medical guidelines? What better way to increase the use of evidence-based medicine and decrease physician anxiety over liability? Isn’t it time we passed the Safe Harbor Liability Protections?

References

1. Rein H. Truths and myths about malpractice. Available at http://www.medical-malpractice.com/myths.htm. Accessed August 11, 2014.
2. Loughlin KR. Medical malpractice: the good, the bad, and the ugly. Urol Clin N Am. 2009;36:101-110.
3. Begel J. Maine physician practice guidelines: implications for medical malpractice litigation. Maine Law Rev. 1995;47:69. [PDF]
4. Smith GH. Maine’s medical liability demonstration project—linking practice guidelines to liability protection. Virtual Mentor. 2011;13:792-5.

Dr. Bensen is president of Medical Education Programs in Buffalo Junction, Virginia.