A Process for Healing

Proposed state measure aims to facilitate transparency about harmful health care incidents

Litigation’s adversarial nature can take a punishing emotional toll on the parties involved, especially when it involves a traumatic incident. But sometimes for a person who has suffered harm, it’s the way to compel the most transparency about how the incident happened. A bill moving through Colorado’s Senate seeks to change that in the health care space. 

Senate Bill 201 creates a communication process between health care providers and patients after a harmful health care incident that’s intended to encourage transparency about possible causes by taking the focus off of assigning blame. Proponents of the bill say the process is meant as a volluntary good-faith effort to preserve relationships between providers and patients, and it contains provisions to safeguard against abuse of the process. 

After an incident, a provider would initiate the process by notifying the patient, and the patient has to agree to participate. And participation doesn’t affect a patient’s right to bring a claim in court based on the incident. The patient also has the right to have a lawyer present during the process.

Also as part of the bill’s intention to encourage open dialogue, communications that happen during the process would be confidential. They would fall outside the purview of legal compulsion for release, such as a subpoena or in discovery, and the communications would be inadmissible in other legal proceedings. But the bill does allow providers and facilities to give information — that doesn’t have identifying details — about harmful care incidents to patient-safety-focused nonprofits to use in research about patient safety research and education.

SB 201 passed unanimously through the Senate Judiciary Committee hearing March 25. Bill sponsor Sen. Brittany Pettersen said the bill has similarities to the concept of restorative justice, where both parties can have an open conversation to understand how the harmful incident happened, as well as discuss possible remedies, without having to immediately engage in an inherently adversarial process. 

“When you talk to patients who have had horrible things happen either to loved ones or themselves, one of the most difficult pieces is the silence after something happens,” Pettersen said, “because immediately everybody gets in their corners and they’re worried about everything they say being used against them in the court system.”

She added it also provides an avenue for patients who otherwise would likely have trouble finding a lawyer to represent them in a legal claim because it’s not worth enough money.

Jean Martin, senior counsel at medical liability insurance provider COPIC who testified at the hearing, said SB 201 is heavily modeled after a bill Iowa passed in 2015. That law initially only applied to a few types of providers and was limited to incidents resulting in death or serious physical injuries, but in 2017 it expanded to apply to any certified health care provider and dropped the word “serious” from the applicability to injuries.

Martin said the confidentiality of the communication process is a key component. It differentiates the legislation from established communication resolution processes that have been used in academia. The University of Michigan medical system established a now-well-known process for communication resolution in 2004 called the “Michigan Model,” and has released a “CANDOR Toolkit” intended as a resource for hospitals that want to establish their own processes.

“This creates a … safe space where everyone can feel very comfortable saying what happened,” Martin said. “And not just the facts of what happened, but ‘This is what I was thinking at the time when we made this decision.’”

Some testimony raised concerns about the possibility for health care providers to hide malpractice or other bad conduct through the process and avoid public accountability for it. Medical malpractice attorney Jim Leventhal of Leventhal & Puga was one vocal opponent of SB 201 at the hearing.

“The language used, which is crafted very carefully, is it’s not a settlement; it’s not a reportable event,” he said. “The language is clearly crafted in such a way to avoid the [National Practitioner Data Bank], the Skolnik Act, the requirement of [the Department of Regulatory Agencies], or any other reporting.”

The Department of Health and Human Services maintains the National Practitioner Data Bank, which contains information about health care professionals such as medical malpractice awards against them and actions against physicians’ practice licenses. The Michael Skolnik Medical Transparency Act of 2010, a state law, requires disclosure of similar types of information.

According to the bill, if a patient and health care provider come to an agreement for compensation under the bill’s process, it’s not a payment for a settlement or judgment of malpractice for reporting purposes by malpractice insurance companies.

Sen. Bob Gardner, a lawyer by background, said he agreed with Leventhal’s interpretation that that language sidesteps reporting requirements under the Skolnik statute. But he said he believes the Skolnik statute hinders settlements in cases when physicians disagree with malpractice claims against them but believe it would be beneficial to compensate the patient for the harm they suffered so everyone can move on, because the physicians know settlements more than $3,000 will be reported under the Skolnik law.

COPIC general counsel Mark Fogg said he believes the spirit and language of SB 201 guard against abuse of the communication resolution process, including patients getting coerced into participating. Because it’s supposed to be voluntary and the bill doesn’t intend it to supplant patients’ rights to bring claims in court, Fogg and Martin said they don’t believe the bill would allow providers to, for example, start including clauses to compel patient participation in agreements or waivers they sign to receive care, similar to compelled arbitration clauses.

“I think if some health care provider tried to preempt this by putting it as an agreement, I think it would defeat not only the intent, but the language of the bill,” Fogg said. That would be both because of the bill’s intents for the resolution process to be voluntary, and for it to be initiated after a harmful incident occurs, he said. “Doing that would defeat all the good intent that makes this an additional process.”

— Julia Cardi

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