Posted on February 1, 2013 at 5:19 PM
Thursday, March 7, 2013, Hamline University’s Health Law Institute welcomes
Maxwell Mehlmann, the Arthur E. Petersilge Professor of Law and Director of the
Law-Medicine Center, Case School of Law, and Professor of Biomedical Ethics,
Case School of Medicine.
that physicians are expected to provide to their patients. It has waged
battles on two fronts: against internal disagreements within the
profession over what constitutes proper care, and against attempts to
delineate the standard of care by forces outside the profession, such as
private health insurers, the government, and the judicial system.
In the early 1990s, forces within American medicine mounted an
unprecedented attack on both fronts, pushing for laws permitting
designated professional medical associations to articulate “medical
practice guidelines” that would define the standard of care, and more
importantly, that would serve as “safe harbors” so that physicians who
demonstrated that they had complied with the guidelines would be
protected from malpractice liability. The 1990s initiative was a failure,
but the safe harbors notion has once again resurfaced, buoyed by
expectations that new “evidence-based” medical practice guidelines will be
able to overcome the obstacles that prevented earlier success.
This presentation begins by describing the historical power struggle waged
by medicine over control of the standard of care. It then describes the
safe harbors concept and its historical background. Next, the presentation
critically analyzes the safe harbors approach and explains its scientific
weaknesses. The presentation then places the safe harbors concept in the
context of medicine’s historic power struggles. The presentation
concludes by defining the appropriate role for practice guidelines
in malpractice disputes.