Oregon enables discussion, mediation after adverse medical events

On July 1, 2014, a new Oregon law became operative that enables discussion and mediation outside court of medical negligence claims.

On July 1, 2014, a major new Oregon law became operative that could impact not only the legal outcomes of medical negligence claims, but also the very practices that produce adverse medical events. The legislation creates a voluntary process of confidential discussion and possible mediation between a patient who suffered serious injury from medical mistake and the medical provider.

In the case of death, or injury to a minor or incompetent person, the law provides for family members or legal representatives to enter into these discussions.

The Early Discussion and Resolution Program is designed to create more open, face-to-face communication in an atmosphere of healing, rather than in one of anger or fear. The process can include an apology from the medical provider and the parties may settle the potential legal claim. An offer to settle is not an admission of liability under the new law.

The content of the discussion and possible mediation, as well as the outcome, are confidential to the informal proceedings and may not later be introduced as evidence or otherwise disclosed if the victim ends up suing the medical providers involved. An exception to this nondisclosure rule is that a discussion communication is admissible in a subsequent lawsuit if it contradicts any statement made in the court proceeding that is material to the claim.

The new procedures were supported by both the Oregon Medical Association and the Oregon Trial Lawyers Association, according to Oregon Public Broadcasting. In addition, Oregon Gov. John Ketzhaber, a physician and former state legislator, who has made the state health care system a top priority of his third term, actively promoted the bill, which passed with bipartisan support.

Proponents hope the program will have certain outcomes:

  • More open communication between injured patient and medical provider that could encourage professional steps to more comprehensively meet the medical and emotional needs of the patient without him or her having to resort to adversarial, expensive court proceedings
  • Savings from a reduced need for doctors to order extra medical tests to protect themselves from being sued
  • Improvement in medical processes and practices in response to what is learned from more open communication from injured patients
  • More reporting of medical errors to help improve medical processes
  • Settlement of medical mistake claims without having to file lawsuits

The Oregon Patient Safety Commission will administer the program. A notice of serious injury or death from negligent medical treatment filed with the commission by either the medical provider or the patient will start the discussion procedure. Should informal discussion be unproductive, the parties have the option to enter into mediation. Finally, if the process ends without satisfactory resolution, the injured party still may file a medical malpractice lawsuit.

The commission will also use information learned from the notice filings to make systemic improvements to the state's medical care delivery system.

Still uncertain is whether settlements through this new, more informal program will be considered malpractice settlements that must be reported to the National Practitioner Data Bank.

Medical professionals eligible for this program are defined broadly by the law. Not only are physicians included, but also psychologists, occupational and physical therapists, registered nurses, nurse practitioners, dentists, dental hygienists, audiologists, speech-language pathologists, optometrists, chiropractors, naturopaths, massage therapists, pharmacists, professional counselors, marriage and family therapists and more.

Any Oregonian injured by medical negligence or whose loved one died from medical malpractice should speak with an experienced personal injury attorney about all legal options, including whether the new process is advisable under the particular circumstances and the potential for a medical negligence lawsuit.

Keywords: Oregon, discussion, mediation, medical negligence, medical malpractice, law, medical mistake, adverse medical event, patient, medical provider, death, injury, Early Discussion and Resolution Program, communication, Oregon Patient Safety Commission, settlement