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21 Annals of Health Law 121 (2012)


Professor Sandra Johnson has identified what she calls physician’s “bad law” claims. In some circumstances, physicians perceive that there is significant legal risk in doing what they think is clinically appropriate. In response, physicians sometimes take a medically inappropriate course of action, because it appears safer. For example, physicians might feel intimidated by aggressively enforced drug control laws. In response, they may under-treat patients’ pain to avoid perceived (and real) threats of investigation, discipline, or criminal prosecution. In short, well-meaning laws sometimes have the unintended side-effect of incentivizing physicians to do “bad” things.

Johnson identifies three responses to physicians’ “bad law” claims. Each of these is aimed at “relieving [physicians’] fears and reducing or managing the legal risk, real or perceived, so that doctors can freely engage in the socially desirable behaviors threatened by the operation of the putative bad law.” First, to the extent that physicians’ fears of the law are based on misinformation or misunderstanding, it might seem that they could be educated about the actual (often low or virtually non-existent) legal risk. Second, if physicians perceive a particular desirable course of action as too risky, asymmetrical incentives might be eliminated by making inappropriate alternatives equally risky. But Johnson explains that these two responses are typically unlikely to be effective.

The third response to “bad law” claims is safe harbor legal immunity. Johnson observes that this is one of “the more familiar legislative responses to physician-reported fears of legal risks.” Indeed, it would seem to be the strongest legal weapon in quelling physicians’ fears of legal risk. Immunity, after all, is a classic mechanism for encouraging legally fearful individuals to do their job. But Johnson concludes that “the evidence seems to indicate otherwise.”

When does legal safe harbor immunity work to dispel physicians’ legal fears? When does it fail? What are the essential attributes of an effective safe harbor? What are the limitations? These are the question that I will address in this Article. In Section I, I provide a brief taxonomy of medical safe harbors. In Section II, I outline the essential attributes of an effective safe harbor. Finally, in Section III, I discuss three key limitations of medical safe harbors. Notwithstanding these limitations, I conclude that safe harbors can be an efficacious mechanism for addressing physicians’ “bad law” claims.