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A malpractice prescription.

Byline: The Register-Guard

In a commendable display of trust and common sense, Gov. John Kitzhaber and legislative Republicans reached an agreement last year to avoid a collision over the contentious issue of medical malpractice lawsuits. The agreement allowed the governor's groundbreaking health care reform to move forward, and it now has produced a promising proposal for a better, less costly way of helping patients who are harmed by doctors' errors.

Republicans wanted a $570,000 cap on damages awarded to patients who prevail in malpractice lawsuits, and they had the votes to stop Kitzhaber's health care reform if they didn't get their way. If Salem were Washington, D.C., a deadlock would have left both health care reform and malpractice reform in ruins.

Instead, Republicans accepted a promise of malpractice reform later in exchange for immediate approval of Kitzhaber's plan.

The Republicans' concession was not entirely an act of faith. Oregon voters have rejected two ballot measures imposing caps on awards in malpractice suits in recent years. The average payout to patients who prevail in malpractice suits is less than the cap the Republicans sought. The rates doctors in Oregon pay for malpractice insurance peaked a decade ago, draining some of the urgency from the issue.

Still, any discussion of malpractice lawsuits involves potent political adversaries - trial lawyers vs. physicians and hospitals. Republicans were responding in part to the Oregon Medical Association, which urged its members to contact legislators and demand malpractice reform. Trial lawyers, a key Democratic constituency, geared up to defend patients' right to sue.

A showdown was averted when Kitzhaber offered to appoint a working group of lawyers, doctors, legislators and others to develop malpractice reform proposals for the 2013 Legislature.

The group began by taking a step back and asking what a process for determining medical liability should seek to achieve. Ideally, the group decided, the process ought to improve the practice of medicine by allowing doctors to learn from errors, fairly compensate people who are harmed by medical errors, and reduce costs associated with insurance, the legal system and the practice of defensive medicine.

The group will go to the Legislature with a proposal for a malpractice system that installs exit ramps on the way to the courthouse.

After a bad medical result, the first step would be getting the doctor and the patient to talk about what happened. The conversation could end with an apology by the doctor, if warranted. An apology or an explanation is all some patients want or need - and doctors could offer them without fearing that their apologies would be used as evidence of malpractice in court.

If those talks failed to resolve disputes, the next step would be mediation that could include an offer of a financial settlement. If mediation proved unproductive, disputes could go to court.

None of this limits patients' right to obtain compensation for harm suffered at doctors' hands. Mediation would be voluntary, but many disputes could be cleared up before reaching a courtroom.

Patients who currently seek no redress for medical errors because of the cost and uncertainty of litigation would have a chance to be heard, and perhaps obtain compensation, in less confrontational settings. Open discussion would allow the causes of medical errors to be identified and corrected more readily.

It's not certain that the proposed system would achieve all of the working group's aims. One possibility is that Oregon's health care reform plan would alter the nature of malpractice claims as health care providers become responsible for a more comprehensive set of medical and social services. The fairness and cost of a three-step malpractice system - conversation, mediation, litigation - would need to be monitored.

If it all works as hoped, however, the system would be better for doctors and patients alike - and at less cost. Through compromise, Oregon lawmakers may end up with something better than either side initially demanded.
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Title Annotation:Editorial
Publication:The Register-Guard (Eugene, OR)
Date:Jan 24, 2013
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