March 5, 2013 — The medical malpractice reform bill rolled through the Senate, giving the House a chance to approve a mediation system where doctors and patients can talk about medical errors without going to court.
Senate Bill 483 passed 26-3 with the dissent of just three conservative Republican senators, including Senate Minority Leader Ted Ferrioli, R-John Day.
“It is not tort reform. It will offer no relief for our surgeons and OB-GYNs who operate in constant fear of lawsuits,” Ferrioli said. “This is a case of bait and switch. I think it represents a promise broken.”
But chief sponsor Sen. Floyd Prozanski, D-Eugene, said tort reform was never the intent of SB 483, which was jointly crafted in a task force between the Oregon Medical Association and the Oregon Trial Lawyers Association and has the strong backing of Gov. John Kitzhaber. Prozanski co-sponsored the measure with Sen. Jeff Kruse, R-Roseburg.
Prozanski, an attorney, suggested that tort reform proponents should go out and gather signatures for a constitutional amendment capping non-economic damages if that’s what they wanted. Voters have twice defeated such a measure. In 1987, the Legislature capped damages, but the law was thrown out by the Oregon Supreme Court as unconstitutional.
SB 483 gives $1.6 million in general fund dollars for the Oregon Patient Safety Commission to help mediate voluntary discussions between patients and doctors when an error resulting in serious injury or death occurs. Unless it is proven that a healthcare provider had lied in the mediation, the discussions are not open to discovery for admission in court.
Instead, doctors who would normally be skittish about admitting or revealing anything about errors can have a chance to confidentially speak with patients who might otherwise be left in the dark. If monetary compensation is found necessary, a binding settlement offer can be made.
“We go into defensive mode. Nobody’s willing to say what happened,” said Sen. Elizabeth Steiner Hayward, D-Portland, who is a medical doctor. She said SB 483 had benefits tort reform would not, offering doctors a safe harbor where medical errors can come to light.
“Caps alone will not do that. Caps will just take us back to court,” she said. “This is not a baby step. This is a huge step. And it’s a step back to helping our patients.”
In a statement, Gov. Kitzhaber praised the bipartisan passage of SB 483: “I committed last year to bring a proposal to the legislature to ensure that our medical liability system fits within our shared vision of health system transformation and I am glad to see the Legislature moving forward with this important bill,” he wrote. Kitzhaber worked as an emergency room doctor before entering Oregon politics.
The Senate chamber’s other physician, Sen. Alan Bates, D-Medford, supported the bill but said the tort system still badly needed fixed to reduce defensive medical procedures such as unnecessary tests and procedures that he said eat up 10 to 15 percent of medical costs.
He hoped after the program became established mediation in a few years it would move from a voluntary measure to a requirement before medical malpractice claims can go to court.
SB 483 enjoys broad bipartisan support in the House as well, with co-sponsorship from Rep. Chris Garrett, D-Lake Oswego and Rep. Jason Conger, R-Bend.
