New bill promotes apology, negotiations to handle errors

The measure gets the nod from obstetrician-gynecologists and New York State doctors, but medical groups continue to push for damage caps.

By David Glendinning — Posted Oct. 24, 2005

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Washington -- In an attempt to break the congressional deadlock over medical liability reform, two Democratic lawmakers have proposed a way for doctors and patients to address medical errors without resorting to lawsuits.

Sens. Hillary Rodham Clinton (D, N.Y.) and Barack Obama (D, Ill.) recently teamed up to introduce the National Medical Error Disclosure and Compensation Act of 2005. Based in part on state and private-sector initiatives, the legislation aims to reduce liability-related costs by heading off expensive lawsuits with apologies and financial compensation from doctors.

Physicians, hospitals, insurers and others who choose to enroll in the voluntary program would set up a system for identifying safety lapses and informing patients. The patients then could choose to participate in a negotiation process in which they would review compensatory offers from the physician or entity at fault. If someone rejects the offers and sues the doctor anyway, he or she would be unable to use the negotiation proceedings as evidence in court.

The proposal embraces the concept that early acceptance of responsibility by physicians who make mistakes often results in the patients deciding not to sue, Obama said.

"Across America, hospitals and medical providers are proving that there's a better way to protect patients and doctors, all while raising the quality of our care and lowering its cost," he said. "This legislation will help reduce medical error rates and medical malpractice costs by opening the lines of communication between doctors and patients -- encouraging honesty and accountability in the process and, most importantly, improving care."

The Clinton-Obama measure garnered the backing of at least two physician groups. The American College of Obstetricians and Gynecologists, which represents a specialty that is often the subject of lawsuits, and the Medical Society of the State of New York issued public statements of support for the legislation.

"We support congressional consideration of alternative approaches to medical liability reform that help compensate injured patients fairly, quickly and fully for their damages; take injury claims out of the adversarial tort system where medical facts are often poorly understood; lower liability insurance premiums for physicians; stabilize the medical liability insurance market; and end medical lawsuit abuse," ACOG President Michael T. Mennuti, MD, wrote in a letter to Clinton.

The American Trial Lawyers Assn. is still reviewing the Clinton-Obama legislation, according to a spokesman.

More than 15 states have passed legislation allowing doctors to offer apologies for mistakes without worrying that their words will come back to haunt them in subsequent court proceedings.

No substitute for damage caps

Clinton and Obama said their plan could provide the elusive middle ground for lawmakers locked in battle over the medical liability issue. Legislation that would cap noneconomic and punitive damages in medical liability suits passed the House once again in August but remains stalled in the upper chamber.

But physician groups, such as the American Medical Association, do not intend to give up on the damage caps to embrace an alternative legislative concept. The AMA said it would review the new bill, which would amend patient safety legislation that Congress passed earlier this year, while continuing to fight for Senate approval of the House tort reform bill.

"We strongly support improvements in patient safety and championed bipartisan patient safety legislation enacted this summer," said AMA President J. Edward Hill, MD.

"Our nation also desperately needs medical liability reforms, which is why the AMA supports proven reforms working in California for 30 years to stabilize premiums and ensure patients' access to physicians," he said.

The ob-gyn group and the New York medical association also remain committed to passing liability caps, despite their backing of the voluntary negotiation process. Their support for the Senate bill comes as lawmakers are increasingly suggesting that consideration of the House-passed liability reform legislation likely will not occur again until the 2006 session.

Although the federal negotiations program would be completely voluntary for physicians and other health professionals, several Republican aides suggested that the Clinton-Obama measure also would encounter resistance in the upper chamber.

Some supporters of comprehensive liability caps fear that passage of the measure could further hobble the tort reform movement and provide opponents with valuable political cover.

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A new way to say "sorry"

A voluntary program aimed at addressing medical errors without involving the courts is the centerpiece of recently introduced Senate legislation. Here's how the bill's sponsors say the program would work:

  • A physician practice, hospital or insurer joins the National Medical Error Disclosure and Compensation Program and appoints a patient safety officer.
  • If a medical error is discovered, the program participant informs the patient and offers a voluntary negotiation process to address the issue.
  • The participant, possibly using a third-party mediator, offers an apology and financial compensation to the injured patient.
  • A patient who decides to file a lawsuit anyway is prohibited from citing in court the terms proposed in the negotiations.
  • A new federal office collects non-identifiable information about the medical errors cases for further study.

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