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 voluntary 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.