The discrepancy exists in the fact that doctors’ performances are measured against “customary practice,” which is defined as what doctors usually do, which isn’t always necessarily based on the best medical science, Orszag writes. If doctors followed protocols published by a professional medical association, they could be protected by law. The Center for American Progress, a moderate Democratic think tank, presented this idea and gave suggestions for how it could be implemented.
A study by Professor Michael Rakes of Cornell Law School and Anupam Jena, a professor of health-care policy at Harvard Medical School, found that shifting away from local “customary practice” standards toward national practices can improve health care. “The literature to date has largely failed to appreciate the substantive nature of liability rules,” Frakes and Jena write, “and may thus be drawing limited inferences based solely on our experiences to date with damages caps and related reforms.” Limiting lawsuit damages is unconstitutional in Kentucky.
If doctors knew they could be protected from lawsuits if they followed specific procedures, “the safe harbor might have an even bigger effect on their behavior than the Frakes-Jena study suggests,” Orszag writes.
Though it could take a long time for this change to happen nationally—because most Democrats in Congress are against malpractice reform and Republicans are concentrating on damages caps—states can reform their individual malpractice systems, Orszag notes.