HHS memo on med-mal re­port­ing could ham­per me­di­a­tion

Modern Healthcare - - NEWS - By Andis Robeznieks

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.”

“We were hop­ing we would get more data from ad­verse events … so we would get more in­for­ma­tion about what goes wrong with pro­ce­dures.”

Ore­gon state Rep. Ja­son Con­ger

The Mas­sachusetts law went into ef­fect in Novem­ber 2012 and a pilot pro­gram was ini­ti­ated at six hos­pi­tals. It since has been ex­panded to in­clude a seventh hos­pi­tal and a mul­ti­spe­cialty physi­cian group. At is­sue is the def­i­ni­tion of mal­prac­tice “claim,” which HHS said in­cludes writ­ten de­mands for pay­ment re­sult­ing from pre-lit­i­ga­tion set­tle­ments. Mas­sachusetts had pro­posed to only re­port cases where it was de­ter­mined that a prac­ti­tioner failed to meet the stan­dard of care.

HHS said that cases had to be re­ported re­gard­less of whether care was de­ter­mined to be up to stan­dards and that the state’s “pre-lit­i­ga­tion no­tice” to ini­ti­ate the med­i­ta­tion process qual­i­fied as a “writ­ten claim” that must be re­ported.

The Ore­gon law arose from the work of a task force in­clud­ing rep­re­sen­ta­tives from the state med­i­cal and plain­tiff lawyers’ as­so­ci­a­tions. “We were hop­ing we would get more data from ad­verse events … so we would get more in­for­ma­tion about what goes wrong with pro­ce­dures,” said state Rep. Ja­son Con­ger, an at­tor­ney who spon­sored the bill. “If by fil­ing a no­tice of an ad­verse event you’re trig­ger­ing an obli­ga­tion to re­port an in­ci­dent of mal­prac­tice, there would be a lot fewer no­tices filed.”

Bethany Walm­s­ley, ex­ec­u­tive direc­tor of the Ore­gon Pa­tient Safety Com­mis­sion, which ad­min­is­ters the me­di­a­tion pro­gram, said, “Ore­gon’s only in­tent is to im­prove pa­tient safety and stream­line the process so that pa­tients and fam­i­lies can re­ceive the timely in­for­ma­tion, care and, if ap­pro­pri­ate, com­pen­sa­tion than what the tra­di­tional med­i­cal mal­prac­tice sys­tem has of­fered pa­tients.”

Ac­cord­ing to the guid­ance the state re­ceived last month from HHS, she said, the only cases that won’t get re­ported to the NPDB are ones in which no pay­ment or com­pen­sa­tion is ex­changed.

HHS noted in the memo that the two state laws were re­viewed af­ter the agency re­ceived re­quests from Ore­gon Gov. John Kitzhaber; Pub­lic Cit­i­zen, a con­sumer ad­vo­cacy group; and the Mas­sachusetts Al­liance for Com­mu­ni­ca­tion and Res­o­lu­tion fol­low­ing Med­i­cal In­jury, which in­cludes in­sur­ers, providers and pa­tient-safety ad­vo­cates.

Last Septem­ber, the Pub­lic Cit­i­zen Health Re­search Group sent a let­ter to Se­be­lius as­sert­ing that the 2013 Ore­gon law “un­der­mines the use­ful­ness” of the data­bank by al­low­ing doc­tors who en­tered me­di­ated set­tle­ments to move to another state where the in­ci­dent would not be on the books.

Dr. Michael Carome, direc­tor of the Health Re­search Group, ap­plauded HHS’ de­ci­sion. “Other states were likely to fol­low Ore­gon’s lead and it would ul­ti­mately un­der­mine re­port­ing to the (data­bank) and ul­ti­mately un­der­mine pa­tient safety,” he said.

Dr. Alan Wood­ward, a past pres­i­dent of the Mas­sachusetts Med­i­cal So­ci­ety, said his state’s goal is to roll out a method­ol­ogy that has been suc­cess­ful at med­i­cal cen­ters af­fil­i­ated with the Univer­sity of Michi­gan, Univer­sity of Illi­nois, Univer­sity of Wash­ing­ton and Stan­ford Univer­sity. “It’s not about min­i­miz­ing com­pen­sa­tion to any­one who is in­jured, it’s about mak­ing sure you don’t re­peat sim­i­lar events,” he said. “The num­ber of new cases drops dra­mat­i­cally by learn­ing from your mis­takes.”

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