Can Mediation Reduce Oregon’s Medical Malpractice Suits?

This week Oregon launched a new statewide mediation program aimed at reducing medical malpractice lawsuits and improving the quality of health care.

The Oregon Patient Safety Commission will now accept notices of adverse health care incidents, including those involving serious injury or death. The notice will trigger a confidential conversation between the provider and patient or direct family member. Created by Senate Bill 483 in 2013, the Early Discussion and Resolution Program received $1.6 million in start-up funds from the state’s general fund.

“The goal of the early discussion and resolution program is to allow providers, patients and families a safe space to learn, heal then move on, executive director Bethany Walmsley said. If the two parties have problems agreeing on a resolution, they can seek help from a mediator.”

During the confidential conversation, a provider or health care facility may offer an apology or financial settlement, but if the mediation is not successful, the patient or direct family member may still file a lawsuit.

Although the legislation establishing the program resulted from a compromise between trial lawyers and the Oregon Medical Association, there is some skepticism about whether providers will choose to participate in the program due to concerns surrounding the confidentiality of the conversations. For example, physicians may still be required to report payouts to the federal government’s national database used to track malpractice settlements and accessed by employers when hiring doctors. Oregon has been unsuccessful in exempting the new program’s payouts from federal reporting requirements.

Other providers see the new program as a lose-lose scenario: providers are expected to level with their patients during mediation, but patients are not required to waive their right to sue should the mediation render them an unfavorable outcome.

However, the program is intended to foster greater communication between providers and patients, which should combat the fear of litigation and prevent providers from making the same mistakes, ultimately resulting in better patient care and lower costs.

“Many times, litigation is the only way for patients to get answers, but that destroys the relationship between the patient and provider,” Dr. Bud Pierce, a Salem hematology and oncology physician, said in a press release. “The same errors keep happening because providers are not talking and working on solutions to prevent them from happening again.”