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RELEASE: CAP Proposes Medical-Malpractice Reforms to Reduce Cost of Defensive Medicine, Improve Patient Care

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Contact: Katie Peters
Phone: 202.741.6285

Washington, D.C. — A new issue brief released today by the Center for American Progress outlines reforms to reduce the cost of defensive medicine, which is the ordering of excessive medical tests, procedures, or consultations to protect physicians from medical-malpractice claims.

“Reforming medical malpractice law is one of the unfinished items leftover from health care reform,” said Ezekiel Emanuel, co-author of the report and Senior Fellow at the Center for American Progress. “A Safe harbor solution both relieves physicians of frivolous lawsuits and promotes quality health care. Implementing a safe harbor plan is an excellent solution that garners bipartisan support and unites physicians and patients in meaningful reform.”

With more than 75 percent of all physicians facing a medical-malpractice claim over the course of their career—including nearly all physicians in high-risk specialties—as many as 80 percent to 90 percent of all physicians report practicing defensive medicine to safeguard themselves from accusations of negligence. As outlined in the brief, however, defensive medicine is a costly practice, as it increases health care costs without improving the health outcomes of patients.

In order to combat the negative impacts of defensive medicine, the report’s authors, Dr. Ezekiel J. Emanuel, Topher Spiro, and Maura Calsyn, recommend implementing a “safe harbor” solution to help drive down costs while improving health care outcomes for patients. Under a safe harbor plan, physicians are protected from medical-malpractice litigation if they:

  • Document adherence to evidence-based clinical-practice guidelines
  • Use qualified health information-technology systems
  • Use clinical decision-support systems that incorporate guidelines to assist physicians with patient diagnoses and treatment options

The safe harbor solution creates new incentives for physicians to follow specific, evidence-based guidelines, helping to “reduce unwarranted variation in health care practices and spending, improve the quality of health care, and improve patient safety.”

Using recommendations by the Institute of Medicine, the brief recommends that the development of evidence-based clinical-practice guidelines must:

  • Be based on a systematic review of the existing evidence
  • Be developed by a knowledgeable, multidisciplinary panel of experts and representatives from key affected groups
  • Consider important patient subgroups and patient preferences as appropriate
  • Be based on an explicit and transparent process that minimizes distortions, biases, and conflicts of interest
  • Provide a clear explanation of the relationship between various care options and health outcomes and provide rating of both the quality of evidence and the strength of the recommendations
  • Be reconsidered and revised as warranted when important new evidence emerges

To encourage state implementation of safe harbors, the brief proposes financial incentives for states that implement this reform and are able to reduce both Medicaid costs and patient injuries. Doctors in the state would also need to meet performance goals on the quality of care that is subject to the safe harbor.

Read the report: Reducing the Cost of Defensive Medicine

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To speak with an expert on this topic, please contact Katie Peters at or 202.741.6285.


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