Oregon State Bar Bulletin MAY 2015
Legal Practice Tips
Oregon Leads the Way:
Getting Up to Speed on the Resolution of Medical Disputes
By Susan Hammer
Last spring, I had the great pleasure of being one of several mediators to train participants in Oregon’s Early Discussion and Resolution (EDR) program1 for medical disputes. About the same time, a friend had a serious and adverse outcome while undergoing a medical procedure at a hospital. She did not receive an explanation, apology or any statement of caring. Before these two experiences, I had not thought much about the importance of EDR in resolving medical disputes and how it will likely affect every one of us during our lifetimes. I imagine that in 20 years, we will look back and say, how could we have ever tolerated the current approach?
Effective July 1, 2014, Oregon became the first state in the country to have a statewide early discussion and resolution program. The program is a quiet but potentially revolutionary process for early discussion and resolution of adverse medical outcomes. The program, which is administered by the Oregon Patient Safety Commission, is available to any patient, provider or health care facility that has been party to an adverse health care incident. Participation in the process is entirely voluntary. Since EDR is in its early stages, the commission is making a concerted effort to better inform professionals and patients about the program. I write this article with the hope that we, as attorneys, can be better informed, both to serve our clients and as information resources in our communities.
The 2011 passage of former Gov. Kitzhaber’s Oregon Health Plan was, in part, conditioned on the governor establishing an advisory group to address medical liability reform and report back to the 2013 legislative session with draft legislation. In order to accomplish this legislative objective, Gov. Kitzhaber requested the Oregon Medical Association and the Oregon Trial Lawyers Association to each designate four representatives to serve as an advisory group to address the issue of medical liability reform and submit recommendations for legislation. The governor appointed a mediator to facilitate negotiations and outlined the guiding principles that were to be achieved by the advisory group.
The three guidelines were as follows: 1) Improve patient safety; 2) Preserve access to justice and more efficiently compensate individuals who are injured as a result of medical errors; and 3) Reduce collateral costs associated with the medical liability system, including costs associated with insurance administration, litigation and defensive medicine.
The advisory group met over a nine-month period and, with the assistance of the mediator, ultimately reached consensus around the concept of an early discussion and resolution. The advisory group submitted its recommendations to Gov. Kitzhaber in 2012. Those recommendations formed the basis for a legislative proposal that was submitted in Senate Bill 483. Following the public hearing process, the boards of directors of both the Oregon Medical Association and the Oregon Trial Lawyers Association voted their support of Senate Bill 483. In a joint letter submitted by the board presidents of the Oregon Medical Association and Oregon Trial Lawyers Association to the governor, the president of the Senate, and Speaker of the House, both organizations committed their support of Senate Bill 483.
Senate Bill 483 passed the Senate by a vote of 26 to 3 and the House of Representatives by a vote of 55 to 1. It was signed by Gov. Kitzhaber on March 18, 2013.
How EDR Works
An adverse health care incident is defined as an objective, definable and unanticipated consequence of patient care that is usually preventable and results in the death of or serious physical injury to the patient. OAR 325-035-0001(1). Following an adverse health care incident in Oregon, a patient and/or family members, a health care provider2 or a health care facility3 may file a simple notice with the commission to initiate the EDR process. If the provider files a notice, a confidential and voluntary discussion generally occurs within 72 hours and may include the patient/family, the health care providers and health care facilities (“providers”). If the patient files the notice, the commission informs the providers within seven business days. The early discussion is coordinated by an EDR manager who is employed by a provider. Generally, the discussions will conclude within 180 days of notice. Mediation involving a third-party neutral may occur at any time.
Topics for the discussion may include:
What happened and the implications for the patient’s health and well-being.
Why it happened.
Appropriate health care options.
An apology, expression of regret or caring about the adverse outcome.
Steps the health care facility or provider will take to prevent future occurrences.
Compensation and/or waiver of medical expenses.
If compensation is offered in exchange for a release, it must be in writing and include advice to the patient of the right
to seek legal counsel before accepting the offer.
All oral and written communications, with one exception,4 are confidential. This includes all written and oral communications, offers of compensation, apologies and expressions of regret, steps the health care facility will take to prevent future occurrences of adverse health care incidents, etc. The fact of participation or nonparticipation in EDR is not admissible in evidence. If the parties later engage in mediation with a third-party neutral, the statutory protections of confidentiality applying to all mediated cases in Oregon under ORS Chapter 36 apply.
Why EDR Is Good for Patients
“I am still waiting for, and still need that conversation. Not receiving an apology and explanation from someone caring for your child when something goes wrong is incomparable to any form of inhumanity in medicine or in society. It is simply not right….”
—Dale Ann Micallizzi inThe Power of Apology, by Dr. Marie Bismark
Adverse medical outcomes — results that may or may not be medical malpractice — occur every day. Historically, physicians and health care facilities have been told by their lawyers and insurers not to talk about adverse outcomes, not to admit error and to distance themselves from any patient who complains. As a result, patients may feel abandoned, angry and even vengeful. Their choices are few: to disparage the provider; to file a complaint with a Board of Medical Examiners; or to attempt to hire a lawyer who may take the case or decline to do so. None are helpful in the short run, when the patient needs answers, communication and caring. EDR is a marked departure from the traditional “deny and defend” paradigm.
Indeed, very few patients who are injured by their health care providers will ever benefit from a legal remedy. The cost of attorney and expert fees makes it impractical to bring a lawsuit if liability is questionable or there is little in economic damages. An experienced Oregon plaintiff’s counsel advises that to bring an action, as a practical matter, a case should have minimum damages of $300,000 and preferably $400,000. If a patient does go to trial, his or her chance of success is statistically low — about one in six, according to attorney William A. Barton. Years of discovery and delay may add to the emotional injury the patient has already suffered. EDR may provide a remedy to injured patients who would otherwise not have one.
Why EDR Is Good for Providers
“We have to understand that, despite our best efforts, things will not always go well. The public needs to understand that, and health care providers need to really integrate that into their way of thinking…. I’m just one of many people to say, ‘We’re going to tear down the wall of silence, and let’s just talk about it.’ ”
—Jo Shapiro, M.D., in Revealing Their Medical Errors: Why Three Doctors Went Public
The concept of a “second victim” after a patient is harmed by health care has been strongly established. One study found that after an error occurred, physicians reported increased anxiety about future errors, loss of confidence, sleeping difficulties, reduced job satisfaction and harm to their reputation.5 Silence toward the patient may compound his or her stress, and it may stand against the clinicians’ own perceptions of a moral duty to disclose. EDR creates a safe and confidential environment for a discussion — a discussion that may preserve the doctor-patient relationship and begin the healing process for everyone involved.
Why EDR is Good for Patient Safety
Based on studies from the University of Michigan Health System6and other early users of EDR, it is anticipated that there will be a number of benefits from EDR in Oregon. The premise is that problems can only be addressed if they are known. By identifying and understanding the root causes of adverse health care incidents, health care facilities and providers can improve patient safety and prevent injury to patients in the future. Essential learning can then be shared throughout organizations to ensure sustained improvement. In addition, with statewide participation, it is anticipated that the aggregate data can be used to create effective strategies for resolving adverse health care incidents.
According to Melissa Parkerton, director of early discussion and resolution for the Oregon Patient Safety Commission, the commission is developing a patient and family toolkit that includes guidance and resources. It is hosting a peer support program to ensure providers are supported after incidents and are given help with their own recoveries. The commission is also planning “disclosure trainings” to help providers with guidance for engaging in these difficult conversations. Finally, it is accepting practitioners to join the list of qualified mediators. See https://edr.oregonpatientsafety.org/reports/content/mediators
The Early Discussion and Resolution Program is both common sense and brilliant. The patient, the health care provider and the facility receive the benefit of early discussion and resolution and the patient does not forego any potential legal remedy. Both patient and health care provider suffer less than from silence. For additional information, see https://edr.
“The current system just doesn’t work. It doesn’t work for providers and it doesn’t work for patients. It’s time for a new approach that has the potential to lead to safety improvements that will benefit providers and patients alike.”
—Bud Pierce, M.D., past president of the Oregon Medical Association and co-chair, Task Force on Resolution of Adverse Health care Incidents.
2. Health care provider is very broadly defined, and includes 20 kinds of professionals from audiologists to physical therapists to physicians and dentists. OAR 325-035-0001(6).
3. “Heath care facilities” include hospitals, long term care facilities, ambulatory surgical centers, freestanding birthing centers and outpatient renal dialysis centers. OAR 325-035-0001(7), ORS 442.015 (12)(a).
4. If litigation is pursued and if material and contradictory evidence is offered, the prior contradictory statement is admissible.
5. Waterman A.D., et al. “The emotional impact of medical errors on practicing physicians in the United States and Canada,” Jt Comm J Qual Saf. 2007; 33:467-476..
ABOUT THE AUTHORS
Susan Hammer is a mediator based in Portland. She thanks mediator Eric Lindauer for providing legislative background for this article and Sam Imperati for his review and comment.