Virginia Lawyers Weekly VA Lawyers Weekly
Virginia doctors and hospitals are backing legislation in the 2010 General Assembly to encourage a “disclosure/early offer” pilot project aimed at averting medical malpractice litigation.
House Bill 306, offered by the Joint Commission on Health Care, would authorize the state health commissioner to work with private health care facilities to implement a test program providing for full disclosure to patients when things go wrong and a “pre-claim resolution process” to head off lawsuits.
Supporters say the concept could be a “silver bullet” for eliminating contentious and costly medical malpractice litigation. “Numerous publications extol disclosure, apology and early settlement conversations as the solution – the key to containing costs, even while compensating patients appropriately, and almost magically making everyone happier,” a study panel wrote in a 2008 report.
“There’s a lot of anecdotal evidence out there that these programs do save money, and people express satisfaction with the process,” said Jaime H. Hoyle, senior staff attorney and health policy analyst with the JCHC. She said the pilot project would be to test the concept in practice in Virginia.
Under the proposal, the state health commissioner would authorize health care facilities to operate disclosure programs to encourage “accurate, timely, and complete communications” to a patient or family when a health care outcome involves patient injury or death. Coupled with early disclosure would be voluntary negotiation, mediation or another resolution process to forestall litigation. The disclosures and offers from the health facility would be privileged and inadmissible if litigation ensued. The program would encourage quality control measures to prevent further problems.
Doctors involved could avoid disciplinary action until the resolution process is complete unless the Board of Medicine finds continued practice would pose a substantial danger to the public.
Del. John O’Bannon, a Richmond area neurologist who patroned the bill for the JCHC, hoped a major hospital group like Riverside, Carilion or Sentara might consider testing the waters.
Susan C. Ward, vice-president and general counsel of the Virginia Hospital and Healthcare Association, said the group is backing the measure. “Several of our hospitals have developed such programs, and we support this concept as one that improves patient-provider satisfaction, communication and relationships and helps to identify quality problems so that they can be addressed effectively,” she wrote in an e-mail.The proposal also has the support of the Medical Society of Virginia. It is opposed, however, by the Virginia Trial Lawyers Association.
The VTLA reportedly opposes the provision that would provide privilege protection for disclosures and offers made to patients within the program.
Chamber measures
O’Bannon, R-Henrico, also is carrying two familiar but ill-fated tort reform measures for the Virginia Chamber of Commerce. One would allow depositions to be used for summary judgment and the other would establish an offer of judgment process. Tyler Craddock with the Chamber said the measures would make trial lawyers think twice about filing frivolous lawsuits or going forward after getting “solid, good-faith offers.”
Similar proposals have foundered before in the Assembly, and O’Bannon said he had no illusions about their prospects this time around.
Another bill certain to be a target for trial lawyers is a proposal from Del. Robert G. Marshall, R-Manassas, to sweep aside current medical malpractice litigation and replace it with a Medical Injury Compensation Board. Marshall offers the plan in his 42-page House Bill 87. Doctors are not on board.
Marshall has the support of the Medical Society with House Bill 11 which would ban insurance companies from using decision makers who are not in the same specialty or scope of practice as the treating provider.
Other tort reform measures include Marshall’s recommendation for a study on reducing the costs of defensive medicine (House Joint Resolution 14) and a proposal to study the shortage of medical doctors (House Joint Resolution 29).
Sen. Toddy Puller, D-Mount Vernon, recommends a study of the Virginia Board of Medicine in Senate Joint Resolution 46, citing studies saying the board is slow and ineffective.
Other bills focus on professional regulation. House Bill 35, sponsored by Marshall, would require any physician to report surgical complications to the Board of Medicine, even if the professional was not involved in the surgery. House Bill 662 would allow the Department of Health Professions to accept surrender of a license to terminate disciplinary actions. House Bill 710 would mandate ranking of health care providers under a reporting program for health data.
Podiatrists might finally get some respect as trial experts under legislation introduced in response to a railroad worker’s case. House Bill 723 and Senate Bill 82 would expressly recognize podiatry as including the diagnosis of foot ailments. A circuit judge ruled in 2008 that podiatrists were not qualified under Virginia law to testify about the cause of a plaintiff’s foot problems because the code did not acknowledge the diagnostic role of their practice.
