In Search of a Safe Harbor


safeharbor RMIn the last session of Congress, an unlikely duo joined forces to tackle tort reform from a new direction. Could their bipartisan bill finally cut healthcare costs by reducing defensive medicine?

In the last session of Congress, an unlikely duo joined forces to tackle tort reform from a new direction. Could their bipartisan bill finally cut healthcare costs by reducing defensive medicine?


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At the dead center of the healthcare reform debate is the tension between saving lives and saving money. The reformers say that American health care costs too much and one of the ways to cut costs is to pay providers less. Providers warn that such cuts incentivize providers to see more patients in a shorter amount of time, relying more and more on lab testing. Thus, these kinds of cuts could actually end up costing the system more in the long run. Providers are also incentivized to overtest because doing otherwise can expose them to potentially devastating litigation. We all feel this push to practice defensive medicine, and in the moment it can feel like a win-win. More tests means more lives saved and less exposure to litigation. Let someone else worry about the tab. Well, more and more, the government is being left holding this massive bill caused by defensive medicine, and politicians are taking notice. Some are even beginning to think outside the box.

In the last session of congress an unlikely duo emerged with their sights set on addressing defensive medicine. Congressman Ami Bera, a liberal Democrat physician from California, linked up with Congressman Andy Barr, a conservative republican lawyer from Kentucky. This seemingly odd couple co-authored a tort reform bill called the Saving Lives, Saving Costs Act.


“[Bera and I] come at this issue from somewhat different ideologically positions in terms of healthcare reform,” said Congressman Barr in a recent interview. “We shared a view that – whether you’re for or against the Affordable Care Act – one thing is clear: the ACA simply did not deal with the skyrocketing costs of healthcare.”

According to Congressman Barr, actuaries at the Department of Health and Human Services projected health care spending to grow by six percent a year on average through the decade, reaching a projected 19.3% of GDP by 2023.

The crux of the law, which will likely be re-introduced in the next session of Congress, takes a slightly new approach to tort reform. Instead of putting caps on malpractice damages, the bill protects physicians from frivolous lawsuits when they are practicing within known standards of care, or “safe harbors.”

“We wanted a new approach to medical malpractice reform,” says Barr. “Efforts to reform our medical malpractice system have been attempted in the past without success. Critics of malpractice reform, particularly the plaintiffs, have traditionally opposed reform efforts because they oppose arbitrary limits or caps on damages and proposals that they view as limiting patients’ access to justice. Other critics, typically more conservative-minded members of Congress or other conservatives, have traditionally opposed malpractice reform legislation at the federal level on the grounds that it infringes on states’ rights.”


Under the proposed law, medical malpractice cases involving a federal payor or federally mandated care (i.e. EMTALA) could be moved to a Federal court. And such cases, a board of medical experts would examine the case for adherence to recognized clinical guidelines or best practices. If the care is deemed to have met the standard, the burden of proof would shift to the plaintiff who would be required to prove by clear and convincing evidence that the panel acted arbitrarily. This would allow the defendant to move for summary judgment before expending the time and money on discovery.

The plaintiff could still take the defendant to trial, but if he failed to show by a preponderance of the evidence that the defendant was liable, the plaintiff would be responsible for the defendants legal costs from that point.

Critics have howled that the proposed law – which would impact virtually all cases of alleged negligence in emergency medicine – is intentionally biased in favor of physicians. But Barr points out that physicians have historically been more than willing to criticize their peers.

“There are experts who testify on behalf of plaintiffs and offer testimony in depositions and in trials all the time asserting that a colleague physician has practiced substandard care.” To address this potential bias, the law calls for a three member panel of experts – one chosen by the plaintiff, one by the defense and one that was agreeable to both sides. In the event the sides couldn’t decide a judge would appoint the third member.

One of the benefits of the law is that it encourages specialty societies to establish best practices and other clinical guidelines in an objective manner. But the bill allows the panel to look beyond clinical guidelines and develop guidelines of their own or draw on precedence in previous cases. Moreover, the rules of evidence would be set by the panel more in keeping with an alternative dispute resolution model. The result, if all goes as planned, would be a set of known best practices that could create more safe harbors, allowing physicians to practice in a less defensive, more cost effective manner.

According to Barr, the most criticized feature of the law is the “loser pay” feature.

“If the defendant prevails at the review panel stage,” explains Barr “and the plaintiff makes the decision to proceed but the defendant ultimately prevails either at summary judgment or at trial, the defendant then can recover his or her costs for the litigation from that point forward. The purpose of this is to deter the prosecution of frivolous claims.”

Since this legislation was presented at the last session of Congress it will have to be re-introduced in the next session. The bill received a number of endorsements from medical specialty societies including the American College of Emergency Physicians. Before the end of the session the bill had been introduced in the House Judiciary Committee, the Energy and Commerce Committee and the Health Sub committee. Furthermore, the bill had fifteen co-sponsors from both sides of the aisle. In the next session, Barr will be on the lookout for a Senate companion bill, so that the two houses can work together to get a bill on the President’s desk.

Despite the positive steps taken in the last session, Barr admits that this fight is far from over.

“This is early in the process,” warns Barr. “We just filed the bill in this term of Congress. But we feel like the bipartisan nature of the bill, the fact that we have all of the endorsements and the fact that we’ve received so many co-sponsors this quickly, the fact that we’re getting responses from a lot of outside organizations; that gives us, although this is early in the process, that gives us a lot of hope to move it forward.”

The question remains as to whether this bill would actually save costs. According to Barr, the numbers play out in their favor. “A report from the CBO indicated that direct federal spending would be reduced by roughly $50 billion over about ten years due to savings from Medicaid, Medicare, the Children’s Health Insurance Program, and the Federal Employees Health Benefits program; if we implemented medical liability reform such as the one we have proposed.”

In terms of the bill’s chance of success, Barr is pinning much of his hope on its bipartisan appeal. “The concept of medical liability reform, like the one that we have introduced,” he says, “has been endorsed by the National Commission on Fiscal Responsibility and Reform, which is a bipartisan group; and the Bipartisan Policy Center’s Debt Reduction Task Force. So budget experts from both parties have endorsed it. We maintain hope that this doesn’t have to be a partisan or ideological issue.”

Editor’s notes: 
At the time of publication, polls showed Congressman Barr with a comfortable lead over his opponent in Kentucky. However, Congressman Bera appears to be in a tight race with his opponent in California.

Mark Plaster, MD is the founder and executive editor of Emergency Physicians Monthly
Picture by MsSaraKelly


  1. If congressman Bera loses his race, is there another congressman to carry his torch? This tort reform bill seems like such a crucial step in our road to better healthcare spending.

  2. George Voigtlander on

    This seems like a reasonable approach that would also protect patients from radiographic studies that exposes the patient to radiation that may harm them down the road. Many CT scan are done to CYA and provide limited additional information in making the diagnosis. I hope it gets a chance to work.

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