"Adverse medical events," in medical speak, happen. Today, the patient at the event may receive an apology from the physician or hospital or other medical provider, but not much more.

Meanwhile, physicians and hospitals may conduct a peer review of the adverse event to determine what happened, but patients will never know the results unless they go to court. That may change with HB10-1283, the Patient Safety Bill.

Big bill may transform handling of medical "adverse events"

Sponsored by Representative Jim Riesberg, D-Greeley, the bill is big. Its main provisions include:

• Professional development for physicians, including ongoing professional development activities necessary for continued licensure.
• A requirement that health care providers verify the employment history of health care worker applicants and limits on the liability of health care providers who give out employment history information.
• A protected means by which physicians and patients discuss the causes and corrections to "adverse medical events" without limiting the patient's ability to litigate the event.
• An initiative to explore alternative methods for resolving litigation on adverse medical events, including compiling data on demonstration projects redressing these incidents.

Hospitals must provide health care worker applicant info

Rose Medical Center's experience with the surgery technician who infected patients with Hepatitis C is the immediate cause of the employment history provision. Kristen Parker exposed over 4700 patients at Rose to Hep C when she injected herself with the painkiller fentanyl and put the needles she used, filled with a saline solution, on surgical trays in operating rooms. By the time Rose discovered these "adverse events," Parker had another job at the Audubon Surgery Center in Colorado Springs where another 1300 patients were threatened with infection.

HB10-1283 requires health care providers to verify the employment history of health care worker applicants, including any impairment, drug diversion, patient abuse, and violent crimes.

Doctors can say more than "I'm sorry"

The bill also makes it legally easier for doctors to work with patients who have experienced an adverse event. In today's environment, "I'm sorry" is easy, but an explanation of how an event happened is unlikely due to the threat of malpractice litigation. HB10-1283 makes it possible for doctors to talk to patients about the event, including how it happened.

Any verbal discussion or written summary of an adverse event assessment cannot be used to litigate against the physician. The bill does not prohibit the patient from using documentation underlying the verbal discussion or written assessment summary in court.

Trial lawyers worry about patient's rights

The Colorado Trial Lawyers Association doesn't buy the bill's language. Natalie Brown, an attorney with the CTLA, objects to the language referring to discussion of "assessment of care." In the trial lawyer's view, when a physician reviews "assessment of care" with a patient, anything the doctor and patient discuss after the first visit to the doctor is potentially excluded from litigation. CTLA wants the "assessment of care" language narrowed and made more specific.

CTLA also believes the bill gives too much room for doctors to change their story between when they talk with patients about "assessment of care" and when they are called to court. Two sections of the bill appear contradictory.

Does the bill contradict itself?

In one section, both the patient and health care provider are prohibited from disclosing information obtained through an assessment of care. In the next section, "nothing ...shall prevent the discovery or admissibility of any evidence that is otherwise discoverable, merely because the evidence was presented in an assessment of care."

CTLA believes that if a doctor makes a statement to the patient in the assessment of care discussion, and then changes that statement during legal proceedings, the court should know there's a contradiction.

"It's befuddling," said Brown. "On the one hand, stuff is inadmissible, and then in the next section, everything that's discoverable is still discoverable...There needs to be something in the bill that doesn't allow a physician to say one thing to the patient and then another thing in court, with impunity."

Representative Cheri Gerou, R-Gilpin, rejected Brown's objection. "I'm just hearing this is a bad bill. I'm not hearing anything about what you do want. I'm here for the protection of life, safety and health of the public. I'm not seeing anything here that's constructive as it should be."

Brown responded that state law "shouldn't put a blanket protection on every conversation between physician and patient, because that can be interpreted very broadly and it can affect the compensation for injury caused by negligence."

Important for doctors and patients to discuss adverse events

Dr. Mark Laitos, family physician and president of the Colorado Medical Society, supports the bill. "Our goal is to make Colorado the safest state in the nation for medical care... Once in awhile, unintended outcomes or surprised outcomes occur. Our lawyers tell us ‘don't share with patients because it makes you vulnerable.' The Colorado Medical Society wants to change that.

"We want to have a conversation with patients and continue the collaborative relationship. We want to take these situations out of an adversarial environment."

Colorado Medical Association wants alternatives to litigation

To further their commitment to quality care, the Colorado Medical Association commits in the bill to supporting pilot studies on alternatives to traditional malpractice litigation in resolving adverse event litigation. "We want to be a national innovator in professional safety and accountability."

The Colorado Medical Association won this round on the bill. HB10-1283 passed to the Judiciary Committee on an 8-3 vote. PEN  CCW

This post was published on February 22, 2010. Permalink »