March 1, 2013 — The Joint Ways & Means Committee passed Senate Bill 483 by unanimous consent, moving the bill to the Senate floor next week that would create a voluntary system to mediate disputes over serious health incidents and avoid litigation.
Gov. John Kitzhaber called it the “holy grail of medical legal politics” — a liability reform package that has the support of both the Oregon Trial Lawyers Association and the Oregon Medical Association.
Under the legislation, patients and healthcare providers will be able report medical errors that led to serious injury or death to the Oregon Patient Safety Commission. The bill allocates $1.6 million from the general fund to the Oregon Health Authority, which will pass the money onto that commission.
The goal is to mediate problems associated with medical errors, including settlement offers, rather than settle those disputes in a courtroom. Patients can still have their attorney represent them and file a lawsuit if they’re unsatisfied with the mediation process or the settlement.
“If they accept the offer, it’ll waive the rights to litigation,” said Sen. Floyd Prozanski, D-Eugene, an attorney and chief sponsor of SB 483. He told The Lund Report that as a prosecutor, he believes that if you get two affected parties together to communicate it can greatly reduce anxieties.
“I have great confidence it will work because you are improving communication,” Prozanski said.
Dr. Bud Pierce, the president of the Oregon Medical Association, said the physicians in Roseburg have a similar mediation process that began 10 years ago that’s been successful in mediating disputes. “They wouldn’t want to go back to the old way,” Pierce said. “Right now, it’s very difficult when medical errors happen to talk about it outside a legal system.”
Pierce is hopeful that patients who are harmed by medical mistakes would receive a much larger share of the monetary settlements — up to 80 to 90 percent, instead of having two-thirds of those settlements dollars eaten up by attorney fees and court costs.
The bill also includes provisions to shield physicians who participate in mediation from being identified, and prohibits malpractice insurers from penalizing those who participate in the mediation process.
Despite these provisions, several Republican lawmakers are still unhappy about the bill. For example, Sen. Doug Whitsett of Klamath Falls asked representatives from the legislative fiscal office whether the bill would reduce the limits on malpractice lawsuits or prevent legal actions — which it does not.
“This is a voluntary system,” said Linda Ames, the principal legislative analyst at the fiscal office. “It does not eliminate the legal process.”
She said the discussion, brokered between doctors and trial lawyers and Republicans and Democrats, was intended to come up with ways to reduce the number of lawsuits and, if possible, head off potential claims.
“This is a flagrant, broken promise,” said Sen. Fred Girod, R-Molalla, who nevertheless voted the bill out of committee while saying he’d oppose it on the Senate floor. “We were promised real tort reform.”
And while Pierce supports the measure, other physicians, most notably Dr. Monica Wehby, a past president of the OMA and Portland neurologist, have opposed the package and called for comprehensive tort reform and caps on non-economic damages. Earlier coverage by The Lund Report noted that the OMA supported voluntary mediation only after a divided vote of its board of trustees.
Rep. Jason Conger, R-Bend, who sat on the legislative task force that reviewed the proposals, said the legislation was adopted as something two often combative groups — medical doctors and trial lawyers — could agree upon and help avoid litigation, but it’s not meant to be seen as tort reform.
Conger also told The Lund Report that he thought oversight from the Oregon Patient Safety Commission would help reduce medical errors and improve hospital performance.
The proposed legislation is modeled after a program in the University of Michigan Health System. Compared to the previous six years, liability claims were reduced from 53 to 32 a year, and the average cost per lawsuit went down from $406,000 to $228,000 in the following six years.
“Is it perfect? I don’t think so,” said Sen. Jackie Winters, R-Salem. “But is it a beginning? I really truly hope so.”
Gov. John Kitzhaber gave the legislation his ringing endorsement at an earlier Senate Judiciary Committee hearing in February, where he praised Oregon as a small state where once again opposing interest groups can work out thorny issues in the best interest of everyone. He called the approach innovative with a big-picture perspective not seen before.
“We’ve not stepped back and recognized that there’s two legitimate value sets that are bumping up against one another. One of course is access to justice, which is a cornerstone of our democracy,” Kitzhaber said. “The other is the ability to say no in an era of fiscal limits, to be able to practice medicine in a good environment where you can make medical decisions without worrying all the time about the threat of lawsuits.”
If Senate Bill 483 becomes law, it will represent the most significant malpractice reform effort Oregon has seen in years.
But while Kitzhaber, as well as Conger, focused on the positive aspects of the two sides coming together, Rep. Mitch Greenlick, the chair of the House Health Committee, saw the agreement as both sides giving ground to reach a compromise.
“I think we’ve got it to where the doctors and the lawyers hate it equally. That’s the sweet spot you’re looking for,” Greenlick, D-Portland, told The Lund Report.
