This week an op-ed by former White House budget director Peter Orzag ran in The New York Times. The piece called for immunity for doctors in medical malpractice lawsuits if the doctor followed a set of specified “evidence-based guidelines” for treatment.
Orzag is a pretty talented number cruncher and budget maven but the proposal is both scientifically and legally illiterate.
As a lawyer, I read Orzag’s op-ed and it’s not even clear that he understands what he’s proposing. Orzag talks of medical “immunity.” Well, in the legal field when we talk about immunity, we mean something that precludes someone from ever bringing suit against an entity. So, one traditional form of immunity – the doctrine of “sovereign immunity” – precludes litigants from filing suit against the federal government or a state government unless the government has consented to the filing of such lawsuits (this consent often comes in the form of a law saying that the government can be sued for certain kinds of torts). Another type of immunity is diplomatic immunity: the immunity from lawsuits that attaches to the representatives of foreign governments. When sovereign immunity or any type of immunity applies, it is a “do not pass go” situation – your lawsuit is dead upon filing and never gets to proceed to a jury.
By both his use of the word “immunity” and his admiring references to the 1972 Social Security amendments, Orzag seems to favor full-blooded immunity for doctors who follow “evidence-based guidelines.” But at other points, when Orzag speaks of doctors “demonstrating” that they followed “evidence-based guidelines,” he seems to be proposing that the guidelines, rather than providing doctors with complete immunity, would serve as a so-called “affirmative defense” for them. Unlike immunity, an affirmative defense does not bar a lawsuit from its outset; instead, an affirmative defense is something that can provide a total defense only at the end of a lawsuit, after there has been fact-finding. One traditional affirmative defense is that of “assumption of risk.” So, for example, if a skydiver dies in a skydiving accident and the skydiver’s survivors allege that his death was due to the skydiving company’s negligence in, e.g., picking a landing site, the skydiving company might rely on an affirmative defense of “assumption of risk,” stating that skydiving is an inherently dangerous activity, that the skydiver knew the risks of the activity before he jumped and that, therefore, they should not be held legally responsible for the skydiver’s death. Unlike a case with an immunity defense that precludes the plaintiff from ever getting through a courtroom’s doors, an affirmative defense is a defense that is typically applied by a jury at the conclusion of a lawsuit.
There’s a big difference between providing doctors with a form of “immunity” in medical malpractice lawsuits and providing them with a new affirmative defense to such lawsuits. If doctors have limited immunity from medical malpractice lawsuits based upon their following “evidence-based guidelines,” they could invoke this protection on their say-so. When a lawsuit was filed against them, they could simply file a motion saying, “I followed the guidelines,” and the lawsuit against them would be dismissed, without any more investigation or inquiry. A plaintiff would not even get a chance to prove that the doctor was lying and that the doctor actually ignored any such guidelines; the lawsuit would simply be doomed from the outset.
On the other hand, if these hypothetical “evidence-based” guidelines were simply an affirmative defense, a plaintiff would get a chance to challenge whether the doctor in fact followed the guidelines and, if the doctor followed the guidelines, he could rely upon them as a defense. Under this regime, medical malpractice lawsuits would hardly be any different than they are today. Today, doctors accused of medical malpractice will frequently rely on medical treatises and other medical authorities to show that their treatment conformed to the standard of care.
So either Orzag is proposing a radical reform of medical malpractice liability, one which would deprive patients of their rights on a doctor’s mere say-so, or he is proposing something that would not make much of a dent in the costs of medical malpractice lawsuits (because the guidelines could only be invoked after discovery in a lawsuit, once the defense lawyers have billed for hundreds of hours of defense work and because the “reform” would not be that drastically different from the state of the law today, where doctors can invoke treatises and other medical authorities in their defense).
Assuming that what Orzag is proposing is the more modest reform of permitting these “evidence-based guidelines” to be relied upon as an affirmative defense, we have to address the question of: Is this (more modest) reform a good idea? It seems unequivocally clear to me that the answer to this question is “No” and that Orzag’s beliefs to the contrary are rooted in ignorance of the practice of medicine and the scientific enterprise generally.
One of the dangers of having one supreme set of “evidence-based” clinical guidelines is that the practice of medicine will become fossilized. Secure in their knowledge that they are following the “right” course of treatment, doctors won’t feel prodded to develop new treatments or therapies. In time, such a regime will inevitably elevate and exalt the “old way” of doing things as sacrosanct. Young doctors who step outside the framework will be exposing themselves to massive liability, even if they have developed a better framework for treatment.
Orzag’s proposal also overlooks the extent to which there is disagreement among medical professionals about the proper standard of care. In virtually every medical malpractice lawsuit (except for the most cut-and-dried cases of mistake), there are expert witnesses on both sides who will disagree about the proper standard of care. The defendant doctor will inevitably drum up an expert who agrees that the proper standard was followed. Medical malpractice plaintiffs have to have their own experts and these experts often testify that the standard of care was different than the negligent doctor had supposed: that research has moved along or progressed since the treatment used by the negligent doctor was developed and that now a new standard applies throughout medicine.
From a legal perspective, Orzag’s proposal is a bit of an incoherent jumble. But however you interpret it, it seems like a bad idea.
You can read more reaction to Orzag’s op-ed here, here and here.

This blog is maintained by the Boston medical malpractice lawyers at The Law Office of Alan H. Crede, P.C. The blog neither contains nor offers legal advice.