As of July 1, 2014, Oregon Senate Bill 483 took effect, changing the way medical malpractice is handled in the state. The law, which was drafted by legislators in 2013 with the full support of Gov. John Kitzhaber, is the first of its kind to be implemented statewide in a comprehensive fashion. In a rare coming together of interests, SB 483 has garnered the praise and support of both the Oregon Medical Association and the Oregon Trial Lawyers Association. The bill allows for what is known as Early Discussion and Resolution (EDR) in cases of adverse medical outcomes that lead to serious injury or death.
SB 483 called on the Oregon Patient Safety Commission to develop and implement administrative rules that would bring EDR not only to hospitals, but to all medical providers in the state. The commission brought together numerous experts and interest groups, as well as medical malpractice insurers, and representatives from major hospitals to work with their board in developing these rules and guidelines. The task force that was ultimately responsible for crafting the language of implementation included physicians, lawyers, and legislators among others.
What the commission came up with in the end is a system that takes a three tiered approach. The first of those tiers is EDR and is, of course, where most of the major changes to malpractice resolution are to be found. The way the EDR program works is it allows the provider, the facility, or the patient to file a notice with the Oregon Patient Safety Commission of an adverse health care incident. This is one of the stand-out differences between Oregon’s EDR system and the Disclose, Apologize, & Offer (DA&O) programs we have talked about here before. DA&O systems are one sided and only provide for the provider or facility to initiate a discussion. But with Oregon’s new EDR system the patient has just as much right to initiate as the provider.
Filing such a notice then prompts a confidential discussion wherein a doctor and patient can discuss openly and honestly what happened, a doctor can apologize if appropriate, an offer of compensation can be made, and hopefully resolution can be arrived at. The goal of the program is to try to introduce a more human approach to dealing with adverse medical outcomes, and to keep it as personal as possible. Rather than feeling compelled to treat a patient as nothing more than a lawsuit in the face of an adverse event, the EDR system is intended to give the doctor the opportunity to treat them as a patient and a person, and to try to resolve the problem on those terms.
Another key feature of the EDR program is that the commission will be responsible to collect and aggregate data on the program and regularly share their findings with providers through publication in order to facilitate providers in learning from mistakes, trends and patterns, and successful resolutions.
The EDR approach is voluntary, not mandatory, and if it does not work or a patient feels that they are not receiving adequate compensation then the next step, in the three tiered process is to pursue mediation. The state has compiled a list of recommended mediators, but any mediator agreed to by both sides is acceptable.
Finally, from there, if resolution is still not reached, or if the patient chooses to forego mediation, litigation is always the final option. The goal of SB 483 however is to see more patients able to receive some type of resolution while seeing less of them doing so through lawsuits.
While there is a lot of bipartisan enthusiasm for the new rules it is worth noting that some doctors are not enthusiastic about the Early Discussion and Resolution provision. They fear that confidentiality will not be respected and that while lawsuit numbers may go down, reports to the National Practitioner Data Bank that can affect their malpractice premiums and even employability could go up under the program. However, according to Melissa Pakerton, director of Early Discussion and Resolution for the Oregon Patient Safety Commission, the only instances in which confidentiality would not be respected would be if a material statement were made in a court case that directly contradicted something a provider had said in one of those early discussions. Anything else that occurs in those conversations, including an apology, is confidential and inadmissible in court. Still, it will likely take some time before we see how well founded some of these concerns are and what kind of evaluation the majority of doctors end up giving the program.
Proponents of the new program cite myriad benefits to the approach from reduced healthcare delivery costs, to a reduction in defensive medicine as a result of a less litigious environment, to faster resolutions, and more patients being able to get some type of resolution. And of course there is the more obvious hope that by opening up this new venue for resolution the number of and amount of money spent on lawsuits will drop.
But, by far, the motivating factor that you hear the most about from those involved in the development and implementation of this new program is the desire to improve doctor/patient relationships. As Dr. William “Bud” Pierce, a Salem hematology and oncology physician, who is also the former President of the Oregon Medical Association and currently serves as co-chairman of the Task Force on Resolution of Adverse Health Care Incidents said in a recent press release, “Many times, litigation is the only way for patients to get answers, but that destroys the relationship between the patient and provider. The same errors keep happening because providers are not talking and working on solutions to prevent them from happening again.” Pierce’s comments represent what many involved in this project have said, and what seems to have driven the reform from the beginning.
The Oregon Patient Safety Commission’s website can be found at edr.oregonpatiensafety.org.
This post was written by Justin Donathan.
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