Early Discussion and Resolution

Where did it come from?

The Oregon legislature, courts and citizens have taken on  liability reform multiples times over the years, but these efforts did not lead to meaningful liability reform. As Oregon moves forward with health care transformation, many feel this effort will not be successful in meeting Oregon’s Triple Aim without significant reform to our liability system.  In response to this concern, in 2012 Governor Kitzhaber committed to bring meaningful liability reform to Oregon.  It was this commitment that brought us SB 483 and the Early Discussion and Resolution process.

What does the program hope to achieve?

  • Quicker resolution of serious events
  • Less stressful system for resolving adverse events
  • Less physician liability anxiety and use of defensive medicine to avoid litigation
  • Equitable compensation to patients who often receive nothing
  • Fewer claims filed in court
  • Less risk of huge jury awards
  • Lower overall costs to the system

Has this concept worked elsewhere?

Yes. Other states have implemented early discussion and resolution programs, although on a smaller scale, as have several Oregon hospitals. 

How does it work?

  • Participation in the Early Discussion and Resolution process is voluntary
  • The process begins with the filing of a Notice of Adverse Health Care Incident with the Oregon Patient Safety Commission.
  • Either a health care provider (or employer), a health care facility or a patient may file the notice. 
  • After the filing, the patient, health care providers and other invited participants may engage in confidential conversations about the adverse health care incident. 
  • An offer of compensation may be made, but is not required.  If these conversations do not resolve the matter, mediation is available. 

The patient may still bring a lawsuit if this process is not successful.

Frequently Asked Questions:

Is this process confidential?

  • All discussion, written and oral, is confidential and not an admission except:
    • If the patient or provider makes a statement during a trial that is “contradictory” to a statement made during early discussion and the discussion statement is “material” to the trial.
  • The fact of participation or non-participation is not admissible into evidence.
  • Agencies, licensing boards, hospitals, insurers or credentialing organizations cannot ask the Patient Safety Commission or anyone else whether a facility or provider has filed a notice, or use the notice as the basis for disciplinary, regulatory or credentialing action.

Can providers get a release of liability if the patient accepts an offer of compensation?

Yes.  The law allows participants in the process to obtain whatever documents are necessary to complete the process, including a release of liability.

What is the role of malpractice carriers?

Malpractice carriers can’t refuse to cover a provider who participates in early discussion, but can impose reasonable obligations on the insured if early discussion does not resolve the matter.  Contact your carrier to determine what procedures they have in place for insured participation in the process.

When does implementation of this process begin?

The Early Discussion and Resolution process is available beginning July 1, 2014.  

 

Educational Resources

Need More Information?

Contact Danielle Sobel, OMA health policy specialist, at danielle@theOMA.org or (503) 619-8000.