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Oregon medical error mediation bill set to become law

A bill to encourage mediation in disputes over medical errors is expected to be signed into law in what supporters say is a step — if small — in the direction of malpractice reform.

Largely based on proposals from a workgroup convened by Democratic Governor John Kitzhaber last summer, the bill lets patients or providers confidentially report medical errors to the Oregon Patient Safety Commission, which will facilitate discussion and mediation aimed at finding non-litigious resolutions.

The Oregon Senate passed the bill in early March by a vote of 26-3; on Tuesday, the House passed it 55-1 and Kitzhaber said he plans to sign it.

Kitzhaber’s workgroup initially recommended making the mediation program mandatory for all medical errors. It ended up being voluntary after negotiations between the Oregon Medical Association and the Oregon Trial Lawyers Association, which supported the final bill.

Some lawmakers thought the bill didn’t go far enough and wanted to include medical malpractice limits. “This is not tort reform. It will offer no relief for our surgeons and OB-GYNs who operate in constant fear of lawsuits,” Republican Senator Ted Ferrioli, who voted against the bill, told the Lund Report. “This is a case of bait and switch. I think it represents a promise broken.”

Democratic Senator Floyd Prozanski, one of the co-sponsors, said that the bill wasn’t intended as tort reform, and told the Lund Report that advocates like Ferrioli should gather signatures for a constitutional amendment to cap damages. Oregon voters have rejected such measures twice in the past, and in 1987 the state Supreme Court overturned a law capping malpractice awards as unconstitutional.

Kitzhaber, an emergency medical doctor who championed a Medicaid overhaul sometimes called “ACOs on steroids,” said the bill, while not necessarily tort reform, “will help resolve many serious medical events before they go to court by allowing health care providers and patients to have early discussions in a confidential setting,”

Under the bill, the Oregon Patient Safety Commission, a semi-independent state agency created in 2011 with members appointed by the governor, will develop administrative procedures for notification and mediation, with most of the provisions set to take effect by 2014. The newly created Resolution of Adverse Health Care Incidents Task Force will evaluate the mediation program.

The bill also prohibits insurers, regulators, licensing boards and providers from asking the commission, providers or patients about adverse incidents being reported or mediated, and bars the use of such information as a basis for disciplinary or licensing actions.

If the related information “is otherwise available,” though, and if there are findings of “medical incompetence, unprofessional conduct, physical incapacity or impairment,” the bill does allow quality review or patient care and restrictions or denial of privileges against providers.

[See also: Tort reform won't provide significant healthcare savings]


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