New Guidelines Could Impact Tort Reform

Oregon will receive a $299,000 federal planning grant in September to begin identifying such guidelines

June 15, 2010 – Medical malpractice reform, an issue that’s divided trial attorneys and physicians for decades, will get a boost when Oregon joins 12 other states to share $25 million in federal grants.
Starting in September, state officials will begin exploring whether evidence-based guidelines have the potential of reducing medical malpractice cases. Three agencies – the Office of Oregon Health Policy and Research, the Oregon Patient Safety Commission and the Center for Evidence-Based Research at Oregon Health & Science University – will split the $299,000 grant.
“We’ll be the only state looking at the issue of safe harbor so there may be some national interest,” said Jim Dameron, the commission’s executive director. “We won’t be implementing anything; this is just a planning grant.”
Medical liability claims are part of the key to understanding which adverse events lead to malpractice lawsuits. By reviewing claims data, the analysis will help create a road map that identifies clinical areas with solid evidence-based science. The next step is to find  guidelines that can reduce the risk of medical errors and wrongful lawsuits, he said.  
 “We need to identify the high-risk areas to see if there’s good evidence-based science to bring to bear and then explore the legal possibilities,” Dameron said. “One of the issues we’ll be looking at is the sword and the shield. Will this be a shield for a physician who uses such guidelines? What will happen if they don’t? Does that become the sword piece of the equation?”
Dameron is interested in the explicit link between patient safety and medical liability issues. “We see ourselves as a patient safety improvement organization. We need to figure out how to get more clever and smart about championing good scientific evidence based good practices.”
It’s unknown if legislation will be necessary to implement such guidelines. Such a recommendation could come from the Medical Liability Task Force created by the Oregon Health Authority, which holds its next meeting July 7.
“Physicians would feel more comfortable if they could practice evidence-based medicine and not get sued,” said Jeffrey Bildstein, an attorney with Western Litigation at the task force’s May 17 meeting.
Exploring evidence-based standards is worth exploring, but not “if it takes away peoples’ rights,” said J. Michael Alexander, a trial attorney who co-chairs the task force,  
The Office of Oregon Health Policy and Research will coordinate the federal grant, “We’ll be focusing on whether there’s a role for evidence-based guidelines in the context of medical liability,” said Sean Kolmer, deputy administrator. “And, whether it should be considered a community standard of care.”
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Standard of care is one thing, and something that deserves support. It stands to reason if a doctor/other practitioner/hospital/ACS doesn't meet a standard of care, then liability increases. However, liability ultimately rests on the outcome of the care. I can say that I used a surgical checklist and thus met the standard of care, but if my patient develops a SSI and suffers serious harm, then is it OK to say to him/her, "Tough luck."? What if my hospital's SSI rate is above the state's average? The nation's? What if I, the surgeon, have a high complication rate, even using "evidence-based standards"? What if I use a modified checklist, for which there's not much, if any, real evidence to support its efficacy? The point is, nothing can be one-size-fits-all. For example, Oregon has a comparative liability "scale" in personal injury cases that might be useful to incorporate in any safe harbor discussion. Naomi Kaufman Price Consumer member, Oregon Patient Safety Commission