Friday, February 15, 2013

The Farmer and the Cowman could be Friends

An Oregon measure just approved by the state senate judiciary committee there encourages malpractice mediation before lawsuits are filed. Both doctors and trial lawyers are actually behind a bill creating a new mediation process for patients injured by medical mistakes. Governor John Kitzhaber, himself a physician, called the agreement “the holy grail of medical and legal politics," something he reportedly never thought he’d live to see. The legislation is touted as a potential benefit to the practice of medicine and thousands of patients. The effort is aimed at reducing medical liability claims, yet puts no restriction on the amount of money a jury can award for medical errors. Critics say it will do nothing for ever-increasing premiums for medical liability insurance. Under the process, injured patients confidentially discuss the error and a possible settlement with the tortfeasor through the assistance of a professional mediator. Participation would be voluntary and the discussions would be inadmissible in court if a lawsuit were eventually filed. Proponents hope this would encourage frank discussion among the parties that could stave off lawsuits. Sponsors claim doctors would have a better opportunity to learn from mistakes and might reduce their ordering of medically unnecessary tests to protect themselves from lawsuits. Oregon lawmakers set a cap of $500,000 on non-economic damages in liability lawsuits in 1987 that the Oregon Supreme Court overturned in 1999. Voters rejected two statewide ballot measures to reimpose caps in 2000 and 2004. The Doctors Company, which insures forty percent of physicians in Oregon, fears higher administrative costs for insurance companies along with higher premiums. Of course, Florida has maintained a mandatory pre-suit screening process in medical malpractice for decades. However, mediation is not a stated option, though underutilized voluntary non-binding arbitration is contemplated following investigation. It is good to see Alternative Dispute Resolution present in a modern debate over medical liability reform, which is always very difficult in producing political consensus. The hope is fewer cases will be litigated and legitimate injuries will be fairly compensated, so that Oregon's health care system as a whole can run more efficiently. The endorsement of the Oregon Medical Association and the Oregon Trial Lawyers Association is certainly an indication that perhaps the Farmer and the Cowman are becoming friends; at least out West. See stories here-- and