Oregon and Massachusetts both passed laws aimed at avoiding lengthy medical negligence litigation by establishing processes allowing full disclosure of the incidents, an investigation, an apology and a settlement offer. HHS found that Oregon's law was designed to keep these incidents from being reported to the databank, which tracks malpractice payments and physician sanctions.
Any case that generates a written claim or written demand for payment must be reported to the databank. HHS' decision memo stated that Oregon's law was “explicitly designed to avoid medical malpractice reporting to the NPDB for any claims that are part of the new process that do not proceed to litigation.”
Conger disagreed. “We were hoping we would get more data from adverse events … so we would get more information about what goes wrong with procedures,” said Conger, an attorney. “If by filing a notice of an adverse event you're triggering an obligation to report an incident of malpractice, there would be a lot fewer notices filed.”
Critics say HHS' memorandum will hinder wider adoption of the “disclosure, apology and offer” methodology used by Oregon and Massachusetts to resolve the legal matters stemming from medical injury and to learn how to prevent future occurrences. That approach, pioneered by the University of Michigan, has been used effectively by several academic medical centers to reduce malpractice suits and medical errors.
The Sorry Works disclosure-training organization praised the Oregon approach. But Dr. Michael Carome, director of Public Citizen Health Research Group, said the Oregon law “undermines the usefulness” of the databank and applauded the HHS decision to require Oregon to report claims handled through its alternative dispute-resolution system to the database.
“Other states were likely to follow Oregon's lead and it would ultimately undermine reporting to the National Practitioner Data Bank and ultimately undermine patient safety,” Carome said.
Conger said the law's goal is to improve patient safety while also developing a more efficient and humane way to help patients harmed by adverse medical events and to speed financial compensation or additional healthcare services to them “without an implication of fault.”
While upset at what he feels is a mischaracterization of the state's intent, Conger said the HHS review and Public Citizen's scrutiny will result in a better program. “I definitely understand better now the concern that's being raised, and the intent is to not remove that reporting requirement entirely,” he said. “As a consumer, I should have a right to know if a healthcare provider I'm considering seeing has had incidents of malpractice.”
Follow Andis Robeznieks on Twitter: @MHARobeznieks
