Colorado Passes Disclosure Law on Heels of Stanford Law Review Study
Two weeks ago, Sorry Works! reviewed the recent Stanford Law Review study on apology laws. In short, the Stanford study claims that state-wide apology laws that encourage docs to say "sorry" (and nothing else, including fairly compensate errors) may actually increase lawsuits against non-surgeons. However, the study's authors were careful to stress that their report did not negate the findings from formal disclosure and apology programs. Moreover, the study's authors and Sorry Works! agree that new or revised statewide apology laws should encourage the development of disclosure programs that meet certain criteria.
Here is what we wrote: "....lawmakers could expand the apology law concept to say a hospital, nursing home, or group of insureds would have their apologies kept out of court if they develop formal disclosure programs that meet certain criteria, including the patient/family can be represented by counsel and a system is in place to provide fair, upfront compensation for compensable claims."
Here is the link for our entire review of the Stanford Law Review Article.
So, earlier this week Colorado did exactly as we recommended in bipartisan fashion with support from both the medical community and personal injury trial bar. Colorado Senate Bill 19-201 makes post-event discussions between doctors and patients/families inadmissible as evidence in a medical malpractice lawsuit so long as certain criteria are met, including notifying patients/families they have a right to obtain their medical records, be represented by counsel, learn the results of a review/investigation of an adverse event, learn the steps taken by the healthcare organization to prevent future errors, and receive fair upfront compensation for errors and have those offers reviewed by counsel.
Since the Colorado program is initiated by clinicians, payments/settlements will not be reported to the NPDB or the state medical board. As we have discussed in past posts, the NPDB and stated medical boards can be a hindrance to disclosure. We have encouraged reforms at the national and state level to to provide some sort of mercy from regulatory punishment for clinicians who quickly apologize for medical errors and meet the financial and emotional needs of impacted patients and families -- which has some parallels to how prosecutors and judges treat contrite defendants (versus guilty parties who insist on fighting charges).
Here is the link for the Colorado legislation.
The requirements of the Colorado legislation will literally force healthcare organizations to adopt disclosure programs. You can't meet the requirements of the legislation without some sort of formal disclosure program within a hospital, nursing home, or other healthcare organization.
Colorado has joined Iowa, Massachusetts, and Oregon as states that have passed creative legislation to encourage the development of disclosure programs. The laws from these states are much more robust and meaningful versus old style apology laws which simply encourage docs to say "sorry" (and nothing more). Which state will be the next to pass such a law that encourages the development of disclosure programs? Perhaps Kentucky, where lawmakers have expressed interest in apology legislation? Or Arkansas which has witnessed a never-ending battle over caps on economic damages? There are probably many states that could adopt Colorado's approach.
Have a nice weekend...
Doug Wojcieszak, President
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