As Oregon attempts to revamp its health care system, the state legislature will have to make all kinds of changes.
One goal, which has plagued lawmakers for years, is to reduce the cost of medical malpractice lawsuits.
Governor John Kitzhaber set up a workgroup this summer to come up with a few ideas.
Kristian Foden-Vencil talked to a couple of workgroup members who say they’re developing a process that would allow doctors, patients and hospitals to talk about mistakes — before everything ends up in court.
When he’s at the capital, Republican Senator Jeff Kruse wears a jacket and tie. But he’s a farmer and today he’s dressed in ripped jeans and covered head-to-toe in dust.
Climbing out of a pickup, he snaps off an ear of corn out his field, shucks it and starts eating.
Jeff Kruse: “We start picking at six in the morning, about daylight. You want to get it when it’s cool and it stays fresh longer.”
Kristian: “And you’re not boiling it or anything like that. It’s just right out of the field.”
Jeff Kruse: “I will take some home and eat it for dinner too.”
When he’s not harvesting corn, Kruse sits on the governor’s Patient Safety and Defensive Medicine Workgroup.
It’s a collection of four lawmakers, a doctor, a health care executive, a personal injury lawyer and a member of the public.
Kruse was chosen for his long history of working on health care legislation in Salem. And, he’d like to stop costly lawsuits.
“People just fish for ways to get money,” Kruse says.
One of the main ideas the group is working on is the creation of a “safe harbor” for hospitals and patients, so they can talk about a medical mistake — without the threat of saying something that can be thrown back at them in a lawsuit.
“It’s all oral and nothing that’s said is discoverable in court. Clearly the medical records are discoverable, but the conversation is not. If accommodations can be reached at that level, that’s as far as it goes. If indeed there are still issues to be dealt with and both sides agree to mediation as the form to potentially settle it, then a mediator
will be called in.”
To accomplish these goals, earlier disclosure of injuries would be required, followed by an apology from the doctor or hospital, and an offer of compensation within 90 days.
But if agreement couldn’t be reached, the next step would be mediation.
“They will have a panel of mediators that both sides can chose from, or they can choose somebody outside that panel. But in mediation, both sides have to agree to mediation or it doesn’t happen.”
If it doesn’t happen, or the parties couldn’t reach an agreement, then they could go to court, just as they can today.
Kruse says as far as he knows, trial lawyers and doctors appear to support the idea, so he says, there’s a good chance it’ll passing during the 2013 legislature.
“It’s totally reasonable. it’s totally reasonable. But what it does is, it allows for conversations to happen where people might be a little bit more forthcoming knowing that it’s not discoverable conversations and maybe you can come to resolutions,” Kruse says.
On the Democratic side of the workgroup, there are similar expectations of success.
Lake Oswego Democrat, Chris Garrett, is a business attorney. He also has a history of working on health care legislation. He says the plan has merit, but some details still need ironing out.
“Most people I think believe this has promise. A couple of the sticking points are, how soon is too soon? Sometimes it may take time for a patient’s injury to become fully understood. And in that case, is it appropriate for people to try and resolve it quickly? Should a patient have to release any rights to sue in the future, or recover damages in the
future? So I think that is a bit of a sticking point.”
Pinning down exactly how much medical malpractice lawsuits cost the health care industry is contentious to say the least.
Some doctors and hospitals pin it as high as 10 percent of medical costs. Trial lawyers say it’s more like 1 percent. But either way, it is a cost. And state officials looking to cut healthcare costs say a reduction would be beneficial.
Another cost that experts say can stem from medical malpractice lawsuits is that doctors sometimes order unnecessary tests — to make sure they don’t get sued.
Garrett says it’s important that these kinds of expenses get reduced — especially if Oregon’s new system of Coordinated Care Organizations is going to be successful.
“As we go through this period of transformation in health care, providers are very worried about liability issues and they are concerned about the practice of defensive medicine and the costs that that creates through the system. So it is extremely important that we look for ways to alleviate that and I think this liability proposal could be a meaningful step in that way.”
Garrett and Kruse say they hope the “safe harbor” idea and mediation will make it through the 2013 legislature. But even if it passes, its effect may be limited, especially compared to the elephant in the tort reform living room — that is caps.
Caps are used to limit the damages that can be awarded to patients for pain and suffering. And neither legislator is optimistic about change there.
“Caps are not even being discussed and that’s a frustration for me,” according to Kruse.
Garrett says, “I don’t think that that will be taken up by our group, but that’s not to say that other people won’t try and introduce that in the session.”
The work group’s recommendations are scheduled to be presented to the governor’s office by the end of the month.
This story is part of a reporting partnership between OPB, NPR and Kaiser Health News.
Kaiser Health News is a nonprofit news service covering health policy and politics. It is an editorially-independent program of the Kaiser Family Foundation, which is not affiliated with Kaiser Permanente.