Oregon Tackles Medical Malpractice Reform with Talks of Safe Harbor Policy

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Oregon may be the next state to implement an innovative solution to reducing the cost of medical malpractice lawsuits. Earlier this year, Massachusetts became the first state to revamp their approach to malpractice law with “Disclosure, Apology, Offer,” which promotes immediate apologies and out-of-court resolutions.

Oregon Governor John Kitzhaber has put together a medical malpractice think tank known as the “Patient Safety and Defensive Medicine Workgroup,” comprised of doctors, legislatures, a personal injury lawyer, a health care administrator, and a layperson. The goal of the Workgroup is to create a plan for a “safe harbor” policy to address the high costs of medical negligence lawsuits and “defensive medicine” in Oregon.

What Is Defensive Medicine?

Defensive medicine is the term used when a doctor takes extra—some would argue unnecessary—measures, often ordering additional testing, visits or procedures, with the partial or sole motive of avoiding a malpractice lawsuit. Defensive medicine has become a problem for some states in recent years and spurred talk of reform for many; with some arguing the federal government should take a more proactive stance on addressing adverse effects of malpractice litigation.

So what are the high costs associated with lawsuits and defensive medicine? One is the cost of malpractice insurance doctors and hospitals now need to safeguard themselves against losing too much in lawsuits or being driven out of business. This may be one reason some are looking to reform the law.

According to the American Medical Association, defensive medicine increases health system costs by $84 to $151 billion every year. These costs could be related to a number of factors, both good and bad depending on opinion, including: more testing and procedures, higher insurance rates, compensation for patients, improved medical facilities, cost of legal representation, and increased costs of drugs, among others.

Although costs of defensive medicine seem to negatively affect health professionals the most, physicians or hospitals (more often private practices) may actually benefit from defensive medicine. Patients have to pay for each exam performed, whether through insurance, their pockets, or from the government; the more tests performed, the more money paid to the doctor or hospital.

Critics of Reform

While some believe defensive medicine is the only way to ward off frivolous lawsuits, others, who believe malpractice lawsuits are not so frivolous, argue that choosing which tests to perform is a doctor’s job. That if they cannot determine which are necessary and which are not, or do not have the mind to know when to stop and consider if a certain test or omission may harm a patient, they are not qualified to perform their duties properly and should have to pay legal restitution for their negligence if a patient is harmed. These folks believe it shouldn’t take a law reform to force doctors to stop practicing unnecessary medicine.

Although critics of reform in opposition to lawsuits tend to be on the minority side, they make a fair point that litigation can bring to light medical errors that ignite improvement in medical situations all over, not just at the hospital where the error took place. With lawsuits comes public awareness and pressure to provide better care; and shouldn’t this be a primary goal?

Solutions

One solution might be more audits and reviews of day-to-day performance. Instead of letting time-consuming lawsuits be the driving force behind more diligent practice among health professionals, let it be a certified evaluation made accessible to the industry and public. But there are a lot of ideas out there and this is just one. Meanwhile, the Workgroup plots away to find a solution for Oregon. What the new safe harbor law entails remains to be seen.

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