Liability climate change

Friday, November 01, 2013 12:18 PM

Legal and policy experts discuss policy options

Kate Alfano, CMS contributing writer

Attendees of the 2013 Annual Meeting participated in a session on Sunday, Sept. 22, on the liability climate, featuring a presentation about recently passed legislation in Oregon that aims to reduce the frequency and cost of lawsuits and a discussion by a panel of incumbent legislators on medical malpractice and patient safety.

Public affairs consultant Kim Ross, the session moderator, set the stage by giving an overview of Colorado’s current political climate: Currently the governor is a Democrat and Democrats control both houses of the legislature, although the Senate party split tightened to 18-17 after the recent recalls. The House remains at 37-28.

“Last year, trial lawyers donated over $750,000 to legislative candidates and leadership funds, while we as physicians did not reach nearly that amount,” he said. “I say this so we can lay the groundwork on what our current political environment is, so we can look to see what it will be in the future thanks to our panel.”

“The Colorado tort system is a disjointed mismatch of negligence and claims,” Ross continued. “There is a roughly 8:1 ratio between compensable adverse events resulting in filed claims, and only 1 in 6 claims pursued involve an actual adverse event. Roughly two-thirds of cases filed are settled without indemnity; two-thirds of cases actually taken to trial are resolved in favor of the defendant and over half of those cases taken to the jury are reduced upon appeal. So we have a very convoluted, complex patient safety scheme that drives cost but in reality does not always provide the recourse that people are looking for: a reason.”

Gwen Dayton, JD, general counsel of the Oregon Medical Association, spoke about a bill recently signed into law in Oregon that creates a program to encourage early discussion and resolution when an adverse health care incident takes place. Senate Bill 483 outlines three phases of the program: early discussion, mediation and litigation.

Notices of an adverse health care incident are filed with the Oregon Patient Safety Commission, an administrative entity for this process. Filing a notice is voluntary and can be done by a patient, provider, health care facility or employer. If the adverse event happens in a health care facility, the facility may file a notice and will notify the patient and the involved provider. If the event happens outside of a health care facility, the health care provider may file a notice and will notify the patient. In all cases except where the provider files the notice, the provider is not identified in the notice.

After the filing, the facility or provider may engage in a discussion with the patient, though this is also voluntary. During that discussion, the filer may communicate to the patient the steps they will take to prevent future occurrences of the adverse health care incident and discuss whether there will be an offer of compensation.

If the early discussion does not resolve the event, the process moves to mediation. The Patient Safety Commission maintains a list of qualified mediators from whom the parties can choose. At the mediation, the provider or facility can offer payment to the patient. If mediation does not resolve the issue, it moves to litigation. But all communications made during the initial discussion are confidential and are not admissible as evidence except if a statement made during the trial contradicts a statement made in the discussion.

The law also establishes the 14-member Task Force on Resolution of Adverse Health Care Incidents consisting of legislators, physicians, trial lawyers, a hospital representative and a patient safety advocate. The group reports to the legislature each year and may recommend legislation to improve the resolution of adverse health care incidents.

Proponents of the law hope the process will allow for quicker resolution of serious events, less physician anxiety about liability and thus a reduction in the use of defensive medicine to avoid litigation, equitable compensation to patients who often receive nothing, fewer claims filed in court, less risk of huge jury awards, and lower overall costs to the system. “Oregon’s early discussion and resolution program is an important step for both patients and physicians as we work to improve the way we address and resolve adverse events in care,” Dayton said.

Though the program is new, Dayton provided examples of similar efforts that have achieved real results. The University of Michigan Health System – with a legislatively implemented six-month waiting period to file a lawsuit – saw a decrease in new claims per year from 53.2 to 31.7, a reduced time to resolution from 20.3 months to eight months, and a decrease in the average cost of lawsuits from $405,000 to $228,000. And Stanford University’s process for early assessment and resolution led to a 36 percent reduction in claim frequency and $3.2 million per year in savings.

The effort to pass the legislation came from Oregon Gov. John Kitzhaber’s commitment to liability reform and his advisory committee on the issue. Another senate bill created the Patient Safety and Defensive Medicine Workgroup. And the collaboration between the Oregon Medical Association and the trial bar presented a bill that was amendable to both physicians and lawyers.

The panel of incumbent legislators who addressed the audience during the liability session included Sen. Ellen Roberts and Sen. Cheri Jahn, as well as Rep. Joann Ginal, Rep. Clarice Navarro and Rep. Mike Foote.

Roberts stressed that Colorado has a good environment for physicians that we should strive to maintain. “I believe both the existing malpractice caps and COPIC’s proactive role through the three R’s program has made that possible,” she said. “Over the years that I have served at the legislature, we have repeatedly heard from young medical students and physicians that they come to Colorado to practice medicine because of our ability to keep malpractice premiums low and by creating a supportive environment for providers.”

“Adopting a more bureaucratic and potentially more politically influenced malpractice system would be a mistake,” Roberts added. “Such a change for Colorado would likely raise premiums and negatively impact the supply of providers in Colorado. My primary concern is that this, in turn, would reduce patient access to care, especially in the rural areas of the state like mine. Encouraging physicians to learn from mistakes and creating an open environment for honest patient-physician dialogue is key to better outcomes and less litigation. While I appreciate that Oregon is taking a different approach, Colorado is the leader to follow.”

“If we were to look at a change to our laws, we would have to ensure it was crafted specifically for Colorado, and that patients, consumer groups and doctors are all part of any discussion. At the end of the day, our job as legislators is to ensure that we have a system that puts people and patient safety first,” Ginal said.

Foote said that the current malpractice system is inadequate and that while he likes the idea of exploring alternative dispute systems like the one Oregon recently implemented, “any system change we put in place must take into consideration the interests of patients, the interests of physicians, and the interests of public safety and the public’s right to know.” He encouraged attendees to engage with their legislators by phone or an in-person visit.

“It’s so important that physicians talk to local legislators,” Navarro said. “Your opinion counts more than you realize.”

Jahn also encouraged members to get to know their legislators to put a face to the issue. “I cannot express enough the importance of our medical professionals having a great relationship with their own legislators and a good understanding of the process,” she said. “We, as legislators, need input from our experts no matter the field. We are here to learn, listen and resolve complex issues and without that expert knowledge we cannot do the job we’ve been elected to do.”

“The doctors in our state truly do maintain a philosophy of the 3 R’s: recognize, respond and resolve. I’m one to believe that if there isn’t a problem we should just leave things alone. It is through dialogues with our great docs and medical teams where we will hear if there are issues to be addressed,” Jahn added.

The Colorado Medical Society thanks all panelists for their participation in the session, providing their insights into the policy implications of medical malpractice and enhancing physician understanding of the liability issue.