This fast-changing health care environment makes it challenging to keep track of all the legislative and policy issues that impact physicians, clinics, and hospitals. That’s why Physicians Insurance regularly monitors the status of numerous legal and regulatory issues on behalf of the medical and health care community. As we move into 2014, following are a few items with which we’re engaging policymakers on your behalf.
OREGON
In late 2013 the Oregon legislature passed Senate Bill 483, a voluntary early-discussion and resolution law titled Resolution of Adverse Health Care Incidents. Under the new law, physicians, hospitals, other health care providers, and patients can initiate an early discussion among relevant providers and the patient about an adverse health care incident. (In SB 483, Section 1, adverse health care incident is 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.”) When agreed to by participants, the discussion can include resolution of any issues surrounding the event and can include the payment of compensation.
- Discussions, subject to the law, are confidential and protected from discovery unless a communication during the discussion contradicts a statement made during a subsequent adjudicatory proceeding and is material to the claims presented in such proceedings (SB 484, Section 4).
- Additionally, in any subsequent adjudicatory proceeding, any offer of compensation and the amount, payment, or acceptance of any compensation made during the early discussion and resolution process are inadmissible. Any compensation paid as part of the early discussion and resolution, however, reduces the amount owed under any subsequent judgment in favor of the patient (SB 483,Section 7).
- Additionally, insurers may not provide, and cannot be required to provide, information related to an adverse health care incident for credentialing purposes (SB 483, Section 15).
One open issue is whether payments made pursuant to the new Oregon law are reportable to the National Practitioner Data Bank. The law states that a payment made as part of the early discussion and resolution process is not a “payment resulting from a written claim or demand for payment” (SB 483, Section 6).
- This provision and other sections of SB 483 raise the question as to whether payments made as part of the discussion and resolution process are reportable to the Data Bank.
- Because the Data Bank obligation is governed by federal law, it is not clear whether the federal government will recognize Oregon’s attempt to shield resolutions under SB 483 from the reporting obligation. The Oregon Patient Safety Commission and its statutorily created task force are charged with developing rules and regulations to implement the early discussion and resolution law. The commission anticipates proposing a draft of such rules in April 2014. Physicians Insurance will make suggestions and voice concerns as the new rules and regulations are developed and will serve as a trusted and valuable resource to the Oregon Patient Safety Commission as it implements the new law.
- Physicians Insurance will also participate in the open meetings of the commission’s Task Force and Rules Committee and the ad hoc Patient Advisory Committee, and Physicians Insurance defense attorneys will serve along with others on the ad hoc Implementation Stakeholder Committee
- We will continue to inform our members of developments relevant to this new law.
IDAHO, WASHINGTON, OREGON, AND WYOMING
Of interest to all our members, Physicians Insurance continues its efforts on a national level to prevent patient
safety and quality standards from being used as standards of care in litigation against health care professionals. Through the Physician Insurers Association of America (PIAA), a national trade association representing medical professional liability insurers, Physicians Insurance supports such legislation.
- Physicians Insurance recently joined a phone campaign to congressional members in support of the Standard of Care Protection Act (Toomey-Carper Amendment #1) as part of an amendment to the SGR fix clarifying that standards for best practices regarding patient safety and quality are not standards of care that can be used in litigation.
The Department of Health and Human Services (HHS) has issued a draft revision of the National Practitioner Data Bank Guidebook, which details the reporting obligations relating to credentialing decisions and professional liability payments made on behalf of health care providers.
- Members can request a PDF of the draft guidebook by e-mailing the Division of Practitioner Data Banks at NPDBPolicy@hrsa.gov.
- Physicians Insurance and the PIAA are drafting comments to HHS focused on clarifying the reporting obligations—since these can often impact resolution of a claim. Additionally, Physicians Insurance will continue to monitor the effect of any expansion of the availability of health insurance on liability exposure.
In these and many more ways, Physicians Insurance daily lives its commitment to monitor the legal liability issues that affect its members.
WASHINGTON
- As more health care professionals and facilities gravitate to electronic health records (EHR), health care professionals and facilities struggle with limiting risks associated with EHR while at the same time maximizing EHR opportunities. A number of resources are available to support our members via our Web site under the Risk Management and CME tabs.
In addition, Physicians Insurance is monitoring the efforts by the Washington Medical Quality Assurance Commission (MQAC) to create EHR guidance. Recently, MQAC’s Policy Committee approved the creation of an EHR sub-committee to evaluate the patient safety issues surrounding the use of EHR and to consider opportunities for publishing guidance.
- As health care professionals look for appropriate ways to use social media outlets yet stay within appropriate professional boundaries, Physicians Insurance and WSMA are working to develop practical advice on the use of social media/electronic communication in the clinical setting. A number of resources are available to support our members. Additionally, Physicians Insurance and WSMA are sharing the health care professional’s perspective with MQAC as it develops support material regarding social media and electronic communication.
- In Washington, Physicians Insurance and the Washington State Medical Association are closely monitoring any effort to expand the Wrongful Death Act. We are also working to curtail attempts to broaden Washington consumer protection laws to the learned practice of medicine.