As the president and Congress debate how to fix what’s broken in America’s healthcare system, it is critical that civil justice reform be included in the discussion.

The U.S. civil justice system is the most expensive in the world, about double the average cost of virtually any other industrialized nation. But for all of the money spent, our civil justice system neither effectively compensates injured parties (less than 15 cents of every tort-cost dollar goes to those injured from medical negligence) nor encourages the elimination of medical errors.

Instead of promoting better medical care, America’s civil justice system has given rise to “defensive medicine,” or medical treatment designed only to avoid lawsuits. To protect themselves, physicians routinely order unnecessary and expensive medical procedures and tests that do not contribute to the care or treatment of the patient, but rather add needless costs to the system.

Research indicates that civil justice reforms could significantly reduce defensive medicine, with savings estimated between $100 billion and $178 billion per year. In a recent speech before the American Medical Association, even President Barack Obama called for civil justice reforms to reduce the costly practice of defensive medicine. If one of the most compelling arguments for comprehensive health reform is to improve the quality of care and rein in out-of-control healthcare spending, then the health reform debate must include civil justice reform.

Rep. Tom Price (R-Ga.), a licensed physician and orthopedic surgeon, has proposed the Health Care OverUse Reform Today Act (HealthCOURT Act), a comprehensive medical liability reform bill intended to reform the process for pursuing medical malpractice cases while decreasing the drive for providers to practice defensive medicine.

One provision of Rep. Price’s bill that will bring about real change is the creation of a litigation “safe harbor” for physicians who agree to embrace clinical best practices as the standard by which they are held accountable. Clinical best practices can be defined as the most effective evidence-based medical care that results in optimum outcomes. Clinical best practices must be recognized as superior care by physicians in a particular medical specialty that promotes continuous improvement and is widely disseminated to healthcare professionals.

Therefore, physicians who fully incorporate clinical best practices into the care and treatment of patients are using nationally recognized standards of superior medical care. This “safe harbor” law would exempt from medical malpractice claims physicians that follow and document best-in-class standards in treating their patients.

Today, many completely unjustified medical malpractice claims are filed because personal injury lawyers know that the cost to defend a case in trial is often higher than the cost to simply settle out of court. This predatory behavior is enabled by law, which often limits the discretion judges should show when deciding whether to dismiss a case.

Under our proposal, a judge, when deciding whether to allow a lawsuit to go forward, would be able to review a patient’s medical record documenting the treatment the patient received and take into account whether that treatment complied with nationally recognized best practices. If so, the judge would be justified in dismissing the case. This reform would stop personal injury lawyers from filing predatory, frivolous malpractice claims.

These best-practice standards will need to be established and clearly delineated so that a judge can review and understand them. Fortunately, most national medical specialty groups have some form of best practices. We believe that physicians — working through their national medical specialty societies — should establish best-practice standards for other physicians.  Not federal bureaucrats. Not Medicare or Medicaid bean counters.

Of course, there will always be instances when a physician and patient collaboratively decide to deviate from national best practices. For example, the best-practice treatment of a particular cancer may include radiation, chemotherapy and surgery, but the patient elects not to include chemotherapy treatments. So long as this decision is documented in a medical record, the rules of safe harbor should still apply.

By appropriately creating a safe harbor for physicians who incorporate clinical best practices into the care and treatment of their patients, we would effectively eliminate the need for expensive defensive medical costs.  Physicians would instead be able to focus on how to make sick people healthy rather than ordering unnecessary tests, scans and medical procedures undertaken solely for the purpose of avoiding a malpractice claim. The use of clinical best practices will result in fewer cases going to court, less money being wasted, quicker resolution of legitimate malpractice claims, lower medical malpractice insurance rates and better health and healthcare services for patients.

We believe that a safe harbor for physicians who subscribe to clinical best practices is a win-win reform for patients and physicians, and one that should be included in any serious effort to reform our health system.



Gingrich, former House Speaker, is the founder of the Center for Health Transformation, and Oliver is the group’s health justice project director. CHT is a for-profit association whose members include hospitals and health systems, insurers, professional and trade associations, advocacy groups pertaining to diseases, and others.