Medical malpractice is, it seems, a lot like the weather: You can complain about it, but you can’t do anything about it. Malpractice reform has vexed state legislative, health-care and legal communities for decades. But at least two states may actually be making some progress.
Massachusetts’ new health-care cost containment law -- signed by Gov. Deval Patrick in August -- includes malpractice guidelines, known as the "disclosure, apology and offer" approach. The law requires a 182-day cooling-off period between an adverse medical event and the formal filing of a lawsuit. The hope is that, during that time, patients, doctors and insurers -- and their attorneys, of course -- can settle a case before it goes to trial.
The Bay State’s law also allows medical professionals to apologize to patients without fear that their apology can be used as evidence of an admission of guilt. Traditionally, many alleged malpractice defendants take the “deny and defend” route. As the governor’s website states, “Many studies show that an apology can prevent a lawsuit but due to the threat of litigation, providers have oftentimes remained silent.”
On the other coast, Oregon is also trying to tackle medical malpractice reform. In February, Gov. John Kitzhaber and the Legislature established the Patient Safety and Defensive Medicine Workgroup to come up with transformative ways to cut down on medical liability lawsuits and improve patient safety. The group includes a physician, a trial lawyer, a health-care executive, a public representative and legislators from both parties of the state House and Senate. It will submit its recommendations to the appropriate legislative committees by Oct. 1, and they will then craft legislation for the 2013 session.
To increase the chances of the group’s proposals becoming a reality, Kitzhaber also called in representatives from the Oregon Medical Association and the Oregon Trial Lawyers Association. “The governor said, let’s get around a table to craft a framework that you both can buy into, because if you two can’t agree, we won’t get anywhere,” says Sean Kolmer, the governor’s assistant health policy adviser. “Each side had to give away something, and they are holding hands now.”
Kolmer says the group started with three ground rules that the governor outlined himself:
1. “Improve the practice environment to allow physicians to learn from medical errors and improve patient safety;
2. “More effectively compensate individuals who are injured as a result of medical errors; and,
3. “Reduce the collateral costs associated with the medical liability system including costs associated with insurance administration, litigation, and defensive medicine.”
“The governor is looking for something different. He’s not interested in the same old proposals that only address the symptoms of the problem,” such as tort reform, Kolmer says. “The question is, how do we balance those three principals to change the culture [of malpractice]?”
As in Massachusetts, Oregon would like to dismantle the “deny and defend” approach and replace it with early disclosure, sincere apology and just resolution. “How can we create an environment in which doctors can have a conversation with patients and families without fear of ‘what if?’”
Medical professionals could start by apologizing and offering compensation, if appropriate, Kolmer says. If patients accept neither, the next step would be to get the parties into mediation -- before advancing to litigation. “Everything would be confidential and in good faith, in the act of trying to resolve the issue without doctors having to look over their shoulder,” he says. “It does not preclude normal discoverable investigations, but it would create a safe environment for things to be resolved.”
And if the parties remain at odds, they still have access to the justice system. “[But] research tells us that if people sit around a table trying to find a solution, they usually don’t end up in the legal system,” according to Kolmer.
This type of attempted culture change, he admits, isn’t groundbreaking. “The real innovation will be scaling it up to a statewide level and making it a statewide process. Whenever you try to change the system, the devil is in the details. The challenge is that, as it moves through the legislative process, as it gets into the sausage-making, it’s about making sure that any changes must be made to adhere to the three guiding principles.”
How much money could malpractice reform save the state? An estimated $600 million to $700 million, according to Kolmer. “But you can’t just focus on containing cost because that’s only about two percent of the health care system. You have to take patient safety and quality improvement into account as well.”
And all of that begins -- as both Oregon and Massachusetts hope to prove -- with the simple act of open and honest dialogue.