Caller: I think my doctor or hospital committed malpractice.
Attorney: When where you treated, and when did you first think there might be malpractice?
Caller: 2014, sometime. I think July or August.
With Oregon’s two-year statute of limitations,* what’s an attorney to do? There’s almost no way to properly investigate such a claim in about one month, assuming the caller was correct about “July or August.”
Attorney options include: (1) Say, “I cannot help you.” (2) Ask the health care provider for a tolling agreement. (3) Quickly file a lawsuit and qualify it under ORCP 7(c)(4) as a protective filing. (4) Another answer, if the case is serious enough, is to file a “Notice of Adverse Health Incident” with the Oregon Patient Safety Commission.
The notice tolls the statute of limitation for 180 days to give the parties time to discuss, mediate, and resolve the situation. 2013 Or. Laws Chap 5, §7(2) (published after ORS 31.250).
The topic is timely because Oregon’s law controlling Discussion, Mediation and Resolution of Adverse Health Care Incidents is approaching its second anniversary. The law applies to incidents that occur on or after July 1, 2014. So, now, the tolling provision is in play.
The law applies only to “Adverse Health Care Incidents,” defined as, “an objective, definable and unanticipated consequence of patient care that is usually preventable and results in the death of or serious physical injury to the patient.” If there is any doubt that the injury is “serious,” then cautious attorneys will obtain a tolling agreement or commence a lawsuit.
What’s the process?
1. Notice of Adverse Health Incident.
A patient, health care provider, health care facility and certain others file the notice with the Oregon Patient Safety Commission.
- The notice IS NOT considered a claim that providers, otherwise, would need to report to licensing agencies.
- The notice DOES constitute tort claims notice required by ORS 30.275.
Below are links to the:
2. Early Discussion.
The parties may engage in discussions – but do not have to – over a full range of topics, including what happened; expressions of regret or apology; steps to prevent recurrence; and monetary compensation. If compensation is offered, then the offer must advise the patient of his or her right to seek legal advice. OAR 325-035-0015(8).
Although these discussions are confidential and not admissible as evidence, there is a confidentiality loophole. A party may try to admit a statement from the “early discussion” that contradicts a statement made at trial or arbitration. To avoid the confidentiality loophole, people may want to move the next step, mediation, before sitting down to talk.
3. Mediation.
The Oregon Patient Safety Commission oversees the Early Discussion and Resolution program. It maintains a roster of mediators who have met the legal standards. (I’m on their panel.) In addition to other qualifications, we spent two days learning or reinforcing what we knew about the interests of all parties to health care mediations.
Too often, I believe, both patient and provider attorneys focus so much on protecting their clients and winning that they do not fully appreciate (or feel handcuffed from addressing) the emotional consequences of adverse health care events. When a human being devoted to providing care inadvertently causes serious injury or death, he or she is devastated. Depression causing too-early retirement, substance abuse and suicide has occurred. For the patient and family, the last thing they want is drawn-out litigation that can feel de-humanizing because of demands for confidential information and perceived gamesmanship, which they believe is irrelevant to what happened and to fair compensation.
If an adverse health care event occurs, file the notice, start talking, and see if everyone can get answers and move forward without stacking a couple of years of additional emotional pain on all those involved.
4. Report Back to Oregon Patient Safety Commission.
Parties should report their results to the Oregon Patient Safety Commission. If not, OPSC will reach out to the parties after 180 days.
Conclusion.
When a person dies or suffers an unanticipated serious injury at the hands of a health care provider, one option to get answers and resolve possible claims is Early Discussion and Resolution. I encourage people to consider whether the process makes sense for themselves or their clients.
Jeff Merrick, Mediator
© 2016 by Jeff Merrick
*Disclaimer: Many time limitations apply in Oregon, from 180 days to 10 years. Two years applies only to some. Contact a lawyer immediately if you think you have a claim and want legal advice. Nothing in this post should be considered legal advice.