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Oregon’s New Approach a Better Solution than Malpractice Caps

Medical malpractice is a real problem nationwide. Due to missed or delayed diagnoses, health care provider errors, misread test and imaging results, and pharmaceutical errors, Americans are hurt every day. These sorts of medical mistakes can result in personal injury or even wrongful death. Therefore, preserving patients’ rights to both sue those who injure them and to recover for all of the damages they suffer is of vital importance.

Problems with Tort Reform

Unfortunately, over the last fifteen years there has been a misguided move in legislatures toward what has been called “tort reform.” Under the guise of battling so-called “frivolous” lawsuits, legislatures have enacted draconian laws that both severely limit the time frames in which injured parties can file suit, and slashed the amount of damages a plaintiff can collect. This of course has the exact opposite of the desired effect. Rather than hurting plaintiffs who are not injured, these laws most injure plaintiffs who have been severely injured. Those who are most injured may need more time to sue since after the malpractice it takes them longer to get back to any sense of normalcy, let alone contact an attorney. Additionally, those who are most seriously injured often suffer the most damages, and are the ones being prevented from a full recovery. What many Americans do not understand is that “tort reform” does not just affect medical malpractice claims they would call frivolous-it affects all claims, regardless of merit.

Fortunately, many state courts have held these laws to be unconstitutional under state guarantees of due process and a right to a trial by jury. Also some legislatures are beginning to see the folly in these laws as voters become more educated on the issues. So states are trying new and creative ways of battling the ever rising fees charged by medical malpractice insurers without limiting the rights of those injured by medical professionals.

News Approach to Medical Malpractice?

One such approach went into law in Oregon at the beginning of this month. Oregon Public Broadcasting reports that the state has launched a new process to improve communication between hospitals and patients after a serious medical mistake has occurred. The stated goals of the new program are to allow for quicker discussions between the two sides, speed up the treatment of injuries, lead to faster offers of compensation, and reduce defensive medicine. Defensive medicine is the practice of doctors ordering unnecessary tests to try to protect themselves from suit. The new process represents a compromise between the Oregon Medical Association and the Oregon Trial Lawyers Association.

The Oregonian describes the new process in a bit more detail. Called the “Early Discussion and Resolution Program,” it will allow a patient or direct family member of a patient to file a notice in an incident where someone has been seriously injured or killed by the medical care he or she received. The notice will trigger a confidential discussion in which the doctor or hospital can offer an apology or even a financial settlement, and a mediator can be engaged. If no agreement is reached, the injured party can still sue. Of course, it will still be very important for the injured party to retain counsel, since he or she will have no real way of determining whether any offered financial settlement is fair without legal advice. While it is yet to be determined whether the program will be useful, it is certainly a more realistic and meaningful form of reform than the harmful damage caps other states have pursued.

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