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IAM Mediation November [No. 63] - January 2015

Oregon Leads the Way on Resolution of Medical Disputes

By Susan Hammer (susan@susan-hammer.com; Susan is a commercial mediator based in Portland, Oregon)  

Last spring I had the great pleasure of being one of several mediators to train participants in Oregon’s Early Discussion and Resolution (“EDR”) program for addressing 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 recent 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 wonder how we could ever have tolerated the current approach.

Oregon, like many states, has struggled over the years with various proposals for “tort reform,” such as caps on damages and changes to the evidence code.  In 2013, Governor John Kitzhaber and the Oregon legislature, with support from both the plaintiff and defense bars, enacted legislation establishing a statewide EDR program – the first in the nation.  The legislation seeks to (1) improve patient safety; (2) efficiently compensate those injured; and (3) reduce the collateral costs of insurance administration, litigation, and defensive medicine. 

The premise of EDR is that problems can only be addressed if they are known. By identifying and understanding the root causes of adverse healthcare incidents, healthcare facilities and providers can improve patient safety and prevent injury in the future.  With statewide participation, it is anticipated that aggregate data can be used to create effective strategies for resolving adverse healthcare incidents.

The Oregon program became effective on July 1, 2014.  It is a thoughtful and user-friendly approach that is available as a model for other states.

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, quoted in “The Power of Apology” by Dr. Marie Bismark)

Adverse medical outcomes – results that may or may not be medical malpractice – occur every day.  The consequences range from catastrophic to inconvenient.  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 to disparage the provider, file a complaint with a regulatory body or 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 provider or facility will ever benefit from a legal remedy.  The cost of attorney and expert fees makes it impractical to bring lawsuits if liability is questionable or there is little in economic damages (some plaintiffs’ counsel estimate $400,000 minimum).  If a patient does go to trial, their chances of success are statistically low (estimates are 1 in 6).  Years of discovery and delay may add to the emotional injury the patient has already suffered.

However, following an adverse medical outcome in Oregon, a patient and/or family members, a health care provider or a health care facility may now file a simple notice to initiate the EDR process.  Within 72 hours of the notice, a voluntary discussion may occur between the patient/family, provider and facility.  Generally, the discussions will conclude within 180 days of notice.  The early discussion is coordinated by an EDR manager who is employed by the health care facility.  Mediation involving a third party neutral may occur at any time.

Topics for discussion may include:

  • What happened and the implications for the patient’s health and well-being.
  • Why it happened.
  • What can be done to fix it.
  • 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 EDR discussions are confidential, with one exception: if litigation is pursued and if material and contradictory evidence is offered, the prior contradictory statement is admissible.  However, if the parties engage in mediation, the statutory protections of confidentiality applying to all mediated disputes remain in place.

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, MD, “Revealing Their Medical Errors: Why Three Doctors Went Public”)

The concept of a “second victim” after a patient is harmed by healthcare 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 (Waterman, et al., 2007).  Silence toward the patient may compound their 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. 

What’s Next?

“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, co-Chair, Task force on Resolution of Adverse Healthcare Incidents)

The Oregon Patient Safety Commission is developing a patient and family toolkit that includes guidance and resources.  The Commission is also hosting a peer support program, to ensure providers are supported after incidents and given help with their own recovery.  Finally, it is planning “disclosure trainings” to give providers guidance for engaging in these difficult conversations.

The Early Dispute Resolution program is both common sense and brilliant.  The patient, the health care provider and the facility receive the benefits 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: www.OregonPatientSafety.org/discussion-resolution