Mediating medical errors

The Oregon State Legislature is back in session, and Gov. Kitzhaber has led off testimony for a bill that he calls “the holy grail of medical and legal politics.” The goal of Oregon Senate Bill 483 is to attempt to reduce the number of medical liability claims—in other words, patients who sue their doctors for failing to provide them with an acceptable level of care.

These claims are quite common against doctors in all fields and are often regarded as a major reason behind rising health insurance costs. The cost of medical malpractice is high for everyone: the patients who have experienced medical errors, the doctors who must carry malpractice insurance in order to practice, and the insurance companies that must pay out settlements.

According to Dr. Richard Anderson, CEO of The Doctor’s Company, the largest malpractice insurer in the U.S., the average physician spends 50.7 months of a 40-year career fighting malpractice claims, most of which don’t even result in payouts to the patients involved.

Senate Bill 483 seeks to modify how medical malpractice insurance is conducted in this state; it would include a mediation aspect in the process.

This would mean that before a patient’s and doctor’s lawyers go head-to-head in court, the patient and doctor have the opportunity to sit down and speak to one another in a confidential setting. If the matter cannot be resolved in mediation, it would go to trial, and nothing said while in mediation would be admissible in court.

The thought behind it is that by allowing a patient and doctor to simply talk through their issues, an expensive and time-consuming lawsuit could potentially be avoided.

Mediation is often used in the legal world as a tool for avoiding lawsuits and providing the parties involved with answers and closure. The legal system is a structure that seeks to determine guilt, but often patients are just seeking an apology from the physician(s) at fault. A lawsuit doesn’t necessarily yield an apology, and even if it does, it isn’t necessarily admissible in a medical malpractice lawsuit.

The average malpractice suits awards more than $100,000 to the patient and can cost an equal amount in legal fees for both parties. That’s enough to keep many doctors from performing procedures of which they are not entirely certain of the outcome. While we may regard it as a good thing not to take risks, it also may cause doctors to perform more dependable yet more drastic procedures (for example, performing a hysterectomy in response to an ovarian cyst as opposed to attempting to remove the cyst and possibly saving a woman’s uterus).

In order to reduce legal costs, state governments are making changes to medical malpractice insurance in a method that involves placing a cap on the amount that can be awarded to patients for nonmonetary damages.

States like California and Texas have these caps in place and have seen an increase in doctors after the imposition of these caps. Oregon, however, removed its cap of $500,000 in 2003 as the Oregon Supreme Court cited it as unconstitutional to set limits on the amount that can be rewarded to a patient for malpractice.

With the rising cost of medical malpractice insurance, states are trying to make moves to keep doctors from leaving to practice in states with more favorable laws. Thirty-eight states have attempted to reform medical malpractice insurance by imposing caps, which makes Oregon’s move to mediation even more unique. Without caps to impose, which have consistently been regarded as punishing the already disadvantaged patient, the passing of Senate Bill 483 would provide a space and a time for the patient and physician to talk on a level playing field.

Medical malpractice insurance is used to protect patients from physician error, but its costs, both in modifying the care provided and in the time and money spent on legal costs, are pushing doctors away and worsening conditions for patients. This attempt to keep doctors in Oregon by opening the lines of communication between them and their patients, even in unfortunate cases of medical error, is a real step in the right direction.