Medical malpractice cases that go to trial can take years to resolve and cost a lot of money. They also put stress on the plaintiffs and the defendants, while not necessarily making any difference in improving patient care. Some states are trying a new approach to settling instances of medical negligence. Oregon is one example, and the state has implemented and studied EDR, early discussion and resolution, to help settle cases, with promising results.
Problems with the Current Malpractice System
Right now, in most states, when a patient has been harmed by a medical professional and believes negligence played a role, the only real option for justice or compensation is to file a lawsuit. Malpractice cases are difficult for both sides because they strain the patient-doctor relationship, require that claims be reported to a national databank, and test the definitions of appropriate standard of care.
There are also issues with damages awarded, and deciding how much is fair and how any limits can reduce frivolous cases and the cost of malpractice insurance for physicians. There is also nothing in the process that helps make medical care better going forward, or reduce instance of negligence and mistakes.
Alternative Dispute Resolution
One potential solution to all the issues associated with medical malpractice cases is using a dispute resolution process. EDR is one example of an alternative type of dispute resolution that is gaining traction. It has been used and tested in Oregon to determine if EDR could be a good way to reduce malpractice lawsuits.
The process of EDR in Oregon starts when the harmed patient decides to initiate a conversation with a healthcare provider through the Oregon Patient Safety Commission. For the conversation to proceed, both sides have to agree to it. The rules of the EDR state that the discussion cannot be termed malpractice, which means that the incident in question does not need to be reported to the national databank.
Another rule is that the communications have to be oral, so that it is an actual conversation. These conversations are considered to be confidential and cannot be used as evidence or admission of liability if a lawsuit is filed and a trial proceeds. If there is no resolution, both sides may decide to go through legal mediation, and the patient still has a right to start a lawsuit and go to trial.
Successes of Oregon’s EDR
The EDR system only resulted in 100 conversations in the first three years, but the benefits of using EDR are clear. Having this conversation helps open up communication, gives the patient more information, allows for the possibility of compensation without a trial, and helps to improve safety for patients going forward. The analysis of the results so far indicate that being able to promptly communicate with a doctor after an incident in a way that is confidential is helpful in getting cases resolved successfully.
While there have been important successes with EDR in Oregon, there are still issues that need to be resolved. These include finding ways to incentivize physician participation, ensure that patients are able to access legal advisors, and decide if not reporting incidents to the national databank is actually harmful to patients. Other states may begin to implement EDR systems, as the issues with malpractice cases and the fixes attempted so far are still problematic.