It’s rare that both healthcare providers and trial lawyers support a medical malpractice bill, but this is exactly what has happened in the state of Oregon. Senate Bill 438, backed by Gov. John Kitzhaber (D), suggests the state create a patient safety commission to discuss and mediate malpractice incidents.

Gov. Kitzhaber, who is also a medical doctor, recently convened a bipartisan work group that assessed the state’s medical malpractice process and provided recommendations for improving it. In testimony to the Senate Judiciary Committee, Kitzhaber stated that the new bill “focuses both on improving patient safety and improving the practice environment and culture of medicine.”  

The new legislation proposes that all parties involved in a medical malpractice case sit down and discuss the situation openly and frankly, so an offer of compensation can be made prior to a lawsuit being filed. The legislation stipulates any discussions that take place during these conferences be confidential. However, the commission may use information that surfaces to improve safe medical practice. A professional mediator may be used to help the parties resolve their differences, it states.

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The proposed program is completely voluntary — patients with malpractice cases who do not wish to participate may head straight to court. If patients choose to participate in mediation and the effort fails, the discussions that took place are not admissible in court.

Both the Oregon Medical Association and the Oregon Trial Lawyers Association – two organizations that have historically been at odds over how medical liability reform should be handled – endorse the bill. Gov. Kitzhaber called the mutual endorsement “the holy grail of medical and legal politics,” and went on to say that the bill will “definitely benefit the practice of medicine.”

Although the legislation aims to reduce medical malpractice claims, it does not put any restrictions on the amount of money a jury can award for medical errors (ie, no monetary caps on damages), so not everyone is happy with the plan. Medical insurance companies have expressed concern that the plan does not do enough to address medical liability reform and could result in higher administrative costs for insurance companies and premiums for physicians.

The American Association of Retired Persons (AARP) Oregon branch has also expressed concern about the proposed bill’s lack of safeguards for individual patients that enter the mediation process without representation.