A little-noticed HHS ruling on reporting medical malpractice claims could get in the way of state efforts to promote an alternative dispute-resolution method that several academic medical centers have used effectively to improve quality and reduce lawsuits and damage awards.
On May 22, then-HHS Secretary Kathleen Sebelius signed a memorandum concluding that healthcare providers in Oregon and Massachusetts must report the out-of-court settlements to the National Practitioner Data Bank, which tracks medical liability payments and physician sanctions. They must do so even though laws in those states waive reporting in certain cases handled through disclosure, apology and offer programs.
Such programs, pioneered by the University of Michigan, promote full disclosure of medical errors and allow providers to apologize and provide compensation for alleged negligence without that apology being used against them in court.
Sebelius' memo stated that all medical liability claims that include a written demand for payment must be reported to the databank even if the cases are resolved under those disclosure, apology and offer programs. The memo took aim at Oregon law's “early discussion and resolution” provision, which it described as having been “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.”
Any case that generates “a written claim or written demand for payment” must be reported to the databank, HHS said. The Oregon law, which went into effect July 1 and has not processed any cases yet, states that a payment made to a patient under the measure's mediation mechanism “is not a payment resulting from a written claim or demand for payment.”