PERC - Patient Safety, Professional Liability and Accountability
Any successful effort to dismantle or otherwise impair Colorado’s stable professional liability climate would be wholly unacceptable during these exciting, but challenging times. While maintaining our current liability climate is critical, it is equally important that Colorado develop new approaches to delivering health care and addressing adverse events that minimize the potential for harm, swiftly help injured patients, hold physicians appropriately accountable, create opportunities to learn from adverse events and make changes that will prevent recurrences. This is why CMS and component medical societies have established a goal of defining and positioning medical liability as a health care and patient safety issue, not strictly a legal/tort issue, with our own members and the public. CMS’ Ad Hoc Workgroup on Patient Safety and Professional Accountability – composed of specialty and component society representatives, legal experts and consumer stakeholders – has adopted this as the foundation for its work.
Indeed, Colorado has embarked on a collaboration unique in the country for developing and advancing system reforms that are long overdue. The Patient Safety Act that we introduced in the 2010 legislative session demonstrated to legislators that we were serious about fundamentally reshaping the medical liability system in Colorado. That bill included a provision to encourage physicians to disclose to patients what occurred after an adverse medical event, by ensuring that such conversations could not be used against a physician in court. While the plaintiffs’ bar was successful in killing the bill, we generated bipartisan understanding of the failures of the litigation system and support for our ideas – support on which we can build with future legislative efforts and demonstration projects.
Going forward, CMS will focus not only on developing alternatives to tort litigation for injured patients (e.g., early disclosure and compensation, no-fault approaches, specialized courts, etc.), but culture change within the health care delivery system, in order to minimize the potential for adverse events. We are working closely with COPIC and the Colorado Hospital Association on these efforts. Communications improvements and common records (e.g., common EHRs accessible from a variety of practice settings) are also a critical piece of patient safety, and CMS is keeping that implication front and center in our work on HIT and delivery system reform.
At the same time, we are committed to protecting the existing caps on damages in malpractice cases. Our 2009 member survey made abundantly clear that there is no potential trade-off with the plaintiffs’ bar that would make them willing to raise the caps.
CMS members have expressed widespread and understandable frustration that the federal health reform bill did not address tort reform. However, the bill did establish funding for demonstration projects to combine liability reform and patient safety. We anticipate rulemaking guidance for those grants early next year. The Colorado Academy of Family Physicians has developed an outline of a demonstration project – including and early disclosure and compensation component combined with a specialized court – that could serve as the basis for a grant proposal under this program. CMS’ Patient Safety Workgroup has endorsed their idea and will be working with CAFP on this front.
For more information, view the CMS Patient Safety and Professional Accountability resource page.