Recently passed legislation offers a new approach to addressing adverse outcomes with patients
by Jean Martin, MD, JD, COPIC Legal Department
Featured in the July-August 2019 Colorado Medicine Colorado Medicine.
Nobody wants to see an adverse outcome in health care, yet despite best efforts, these types of incidents occur. How providers deal with them and address the needs of patients is important because the provider-patient relationship forms the foundation of health care. Now, medical providers and facilities in Colorado have a new option to utilize in these situations — the Colorado Candor Act.
The recently passed Colorado Candor Act establishes a voluntary framework for health care providers and facilities to offer compassionate, honest, timely and thorough responses to patients who experience an adverse health care incident. It is designed to benefit patients, their families, clinicians, and health care systems by formalizing a non-adversarial process where there can be open communication about what happened, why it happened, and what can be done to prevent this in the future. Under certain circumstances, the process may include an offer of compensation.
WHERE DID THE LEGISLATION FOR THE ACT ORIGINATE?
The Colorado Candor Act emerged from discussions between the Colorado Academy of Family Physicians (CAFP) and legislators at the beginning of the 2019 state legislative session. CAFP served as a strong advocate for the health care community and its patients by highlighting the benefits of Candor. CAFP worked closely with other stakeholders, including the Colorado Trial Lawyers Association and patient safety advocates, to garner support for this bipartisan measure that passed as legislation (SB19-201).
WHAT TYPES OF INCIDENTS QUALIFY UNDER THE COLORADO CANDOR ACT?
Adverse health care incidents arising from or related to patient care resulting in the physical injury or death of a patient.
WHAT TYPES OF MEDICAL PROVIDERS AND FACILITIES CAN UTILIZE THE COLORADO CANDOR ACT?
Physicians, physician assistants, podiatrists, licensed practical and registered nurses, advanced practice nurses, pharmacists, and others who are licensed, certified, registered or otherwise permitted to provide health care services in Colorado.
In addition, hospitals and health care facilities including clinics, community health centers, community mental health centers, surgical centers, and residential care or nursing homes are eligible to participate jointly with a health care provider involved in the adverse health care incident.
HOW DOES THE CANDOR PROCESS WORK?
A brief overview of the process is as follows:
- The process is initiated by the health care provider.
- The written notice must be sent to the patient within 180 days of the incident.
- The notice must include specific details about the patient’s rights and the nature of the communications/discussions under the Colorado Candor Act.
- Under the Colorado Candor Act, health care providers and facilities may investigate and communicate about how the incident occurred and what steps are being taken to prevent a similar outcome in the future.
- As part of their assessment, health care providers and facilities can determine whether an offer of compensation is warranted.
- To facilitate open communication under the Colorado Candor Act, discussions and offers of compensation under the Act are privileged and confidential.
CAN A PATIENT STILL FILE A LAWSUIT AFTER A CANDOR DISCUSSION?
The Colorado Candor Act does not limit a patient’s ability to use the legal system. Patients can choose to withdraw from the Candor process at any time. However, the discussions and communications that occurred during the Candor process, including any offers of compensation, remain privileged and confidential. Under the Act, an offer of compensation does not constitute an admission of liability. In addition, if a patient chooses to accept an offer of compensation, a provider or facility may require a patient to sign a release of liability, so he or she cannot bring a subsequent lawsuit.
WHAT REPORTING REQUIREMENTS APPLY TO THE COLORADO CANDOR ACT?
Because no payments are made as a result of a written complaint or claim demanding payment based on a practitioner’s provision of health care services, incidents handled through the Candor process are not required to be reported to the National Practitioner Data Bank.
Patients participating under the Colorado Candor Act do not waive their right to file a complaint with the relevant licensing board or the Colorado Department of Public Health and Environment, which oversees health care facilities. Where indicated, a provider’s actions can also be addressed through Colorado’s professional review process for physicians, PAs and APNs, or a facility’s quality management process for other licensed health care professionals.
States outside of Colorado may require notification of incidents where there is compensation under the Candor process for providers who are licensed in those states, including through the Interstate Medical Licensure Compact.
WHAT ARE SOME OF THE OTHER BENEFITS OF THE COLORADO CANDOR ACT?
A health care provider or health facility that participates in open discussions under the Act may provide de-identified information about an adverse health care incident to any patient safety-centered nonprofit organization for use in patient safety research and education. Such a disclosure does not constitute a waiver of the privilege for open discussions and is not a violation of the Act’s confidentiality requirements.
The Colorado Candor Act goes into effect as of July 1, 2019. The Colorado Medical Society will work closely with partners, such as COPIC, to provide additional information and resources about the Act and how to utilize it in the coming months.