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.