Oregon's Disclosure Plan Includes Reporting Changes to State Licensure Boards, NPDB
Last Spring (2012), Sorry Works! launched a national campaign to encourage lawmakers at the state and federal level to reform state licensure boards and the National Practitioner Data Bank (NPDB) in light of the growing disclosure movement. Our reason was/is simple: Caregivers involved in a compensable medical error that was not reckless but did the right thing, including empathy, apology, and fair, upfront compensation, should not be punished by regulatory bodies. Moreover, we expressed our concern that disclosing docs and nurses can literally be "low hanging fruit" for underfunded regulatory agencies. We need to encourage disclosure, but you don’t help disclosure by punishing people with fines and jeopardizing their licenses, we said.
Well, I am happy to report Oregon is the first state to make a serious attempt at our approach. Oregon’s comprehensive legislative language to encourage disclosure by, among other things, reforming the reporting requirements to the state licensure agencies and the NPDB was recently released. Note...this is a bipartisan deal, as the plan was pushed by a Democratic governor, the language formulated by a task force involving all stakeholders including organized medicine and the trial bar, and was recently endorsed by the Oregon Medical Association. The med-mal carriers operating in the state have also expressed their support for the plan. Looks like everybody is on board. There is some kicking and screaming with some of the usual suspects in the defense bar, insurance companies, and "tort reform-only" docs raising a stink --- but we’ve dealt with these folks before. Interesting thing about the "stink article link" in the last sentence is that disclosure in general and Oregon's disclosure push in particular have the attention of high-powered people and groups from the around the country, and not all of them understand disclosure yet. We needs to do lots of education in Oregon and around the country.
Here's how it works: The State of Oregon will establish a patient safety commission, and this commission will accept voluntary reports of adverse events from hospitals, caregivers, and also patients and families. When a report is sent to the commission, the commission notifies all involved parties and the process begins with defined time lines – so things don’t drag on forever, yet the statutes are tolled for the benefit of patients and families involved in the process. Both sides are encouraged to discuss the event, learn what happened, and if the event was caused by a medical error, the doctor/hospital will make an offer to the patient and family AND encourage the family to review the offer with counsel. Insurers are required to participate in the process. Wow.
The entire process is confidential and cannot be used in court, and any reports to the commission – including those deemed compensable – are not considered a written demand for money under Oregon law, so paid claims are not reported to the NPDB or state licensure agencies. Very novel – and actually much cleaner than the original Sorry Works! language on this issue from 2012. I like it – a lot! The commission will use closed cases without names to push for safety changes within healthcare organizations. Finally, neither side gives up their legal rights at any time in the process.
I think this is a real masterstroke. Very comprehensive. It will encourage more disclosure post-event and also more learning from mistakes while truly making the courthouse the last option for both sides.
I applaud the efforts of our friends and colleagues in Oregon, and encourage other states to follow Oregon's lead. Again, here is the Oregon language.
Finally, remember February 13th at 1pm EST/10am PST, Sorry Works! is a holding a free webinar with ELM Exchange to preview our new on-line disclosure learning program for front-line staff. This CME/CE-accredited program is the economic and scalable way to get the disclosure basics down to your front-line staff. This is the way to teach your docs, nurses, and also new hires down the road how to empathize and stay connected post-event without prematurely admitting fault. To register for the preview webinar, simply e-mail firstname.lastname@example.org or call 618-559-8168.