Patient Safety Commission Solicits Advice on Enacting Medical Error Law

The commission is tasked with putting into shape a resolution system for doctors, patients and hospitals by July 1. The confidential process, championed by Gov. Kitzhaber, aims to allow healthcare providers to come clean about errors while avoiding lawsuits.
The Lund Report

Elisabeth Guenther is a medical doctor, but it took a medical mistake involving her mother for the need for greater patient safety and transparency to become such a fundamental issue for her.

Her mother, a lifelong piano teacher, years ago underwent orthopedic surgery. She told the surgeon, “Whatever you do, don’t touch my hands.” The surgeon responded, asking her family members if she was always so difficult.

The surgery was botched; her ulna and radial nerves nearly severed. “She has no radial nerve function to this day,” Guenther said.

The surgeon never spoke to her mother again. The hospital paid for the lengthy follow-up care to try and restore nerve functioning, but never apologized. Her family ultimately decided not to sue, but were left with an unsatisfied outcome, and no faith that the mistake wouldn’t befall someone else.

On the other side, Dr. Guenther has seen how hard doctors and nurses will take medical mistakes, citing a high number of professionals contemplating suicide. “This tears us apart,” she said. “We’ve lost many, many healthcare providers.”

Now an associate professor at Oregon’s new osteopathic school of medicine, Western University of Health Sciences, she specializes in patient safety.

Guenther said that while select healthcare systems have shifted to an early resolution and discussion system, Oregon and Massachusetts are becoming the first states to try this innovative method across their jurisdictions, offering providers a safe harbor where they can talk more candidly with patients after a serious medical accident has occurred.

A year ago, Gov. John Kitzhaber struck the deal he called “the holy grail of medical legal politics” — a joint agreement by the Oregon Trial Lawyers Association and the Oregon Medical Association on this innovative way to hold healthcare providers accountable to patients for medical errors and avoid litigation.

“If those two groups could come together on something, we would have a chance,” said Gwen Dayton, the chief legal counsel for the OMA.

Senate Bill 483, which passed quickly through the Legislature, allows doctors, patients and hospitals to come together in confidential settings to discuss serious medical errors and offer a settlement while avoiding the costs and duress of a legal proceeding. The Oregon Patient Safety Commission has been tasked with facilitating such “early discussions and resolutions” and appointing mediators as needed.

“We wanted to move away from a culture of secrets and blame and really move on to solving problems,” said Mike Bonetto, Kitzhaber’s chief of staff.

Now, six months before the Oregon Patient Safety Commission implements the new law on July 1, 2014, its soliciting opinions from many of the parties affected by the new law, but not privy to the closed-door agreement between the lawyers and the doctors.

A patient advisory group has been set up, and recently malpractice insurers and hospital systems were invited to a luncheon in Eugene, the second such event after a similar one in Portland.

It became clear from that discussion that while the biggest hurdle in liability reform may be getting lawyers and doctors on the same page, many of the technical details still need to be hammered out with the insights of hospital risk managers, like PeaceHealth’s David Allison.

Hospitals, he suggested, should be able to delegate several people as early discussion and resolution managers, who would notify the commission and patients about a medical error and the desire to conduct a confidential meeting.

Allison also supports allowing doctors and nurses to have a confidential discussion about the medical error with their colleagues and include mental health professionals, citing that a nurse or physician can feel devastated about a mistake that took someone’s life or led to a serious injury.

“Without tending to the emotional needs of providers, we won’t be able to have a discussion” with the patient, he added.

While the exact scope of which medical errors might be discussed remains an open question, Patient Safety Commission Executive Director Bethany Walmsley said it’s in everyone’s interest to keep that discussion as wide as possible since the resolution process is entirely voluntary. Anyone can drop out at any time, and a patient can still take legal action if they are unhappy with the financial offer.

There’s only one caveat with this process for patients. Anything disclosed during this safe harbor process is not admissible in court, unless the health provider is found to have lied or changed their position while in court.

“They may choose to go with something that’s grayer. You can go into mediation if you like,” Walmsley said. “If a patient perceives they’re being harmed, the providers may want to talk about it. The idea is to have a thoughtful conversation. It’s better for them. It’s better for the patient.”

The idea of reducing lawsuits and malpractice claims by having patients and healthcare providers sit at the same table and discuss the medical error originated in the 1990s with the University of Michigan medical system. Since then one Oregon hospital system has adopted this practice voluntarily -- Mercy Medical Center in Roseburg.

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