by Sen. Jeff Kruse (R-Roseburg)
The issue with tort reform has never been rewards for actual costs, which could include everything from actual medical expenses to the loss of potential income which could stretch out of a life time. The issue has been what is called punitive damages (which some label as pain and suffering), which is an amount above and beyond any true costs. Several decades back the Legislature put limits in statute and they stood for a long time, until a case was taken to the Oregon Supreme Court. In that case the court determined the limits to be unconstitutional as a denial of due process.
Several years later there was a suit against OHSU with a huge settlement. At that point the issue of uncapped liability for government entities forced a discussion on resetting limits just for the government sector. Legislation was passed to give government protection that actually flies in the face of the court decision. An interesting glitch in the system is the fact the legislature can put laws on the books that are unconstitutional and they will stand until the issue is actually taken to court. In other words, the court cannot make such a determination until a party with standing actually brings a case before them. In this case the trial lawyers, who were part of the work group, agreed not to challenge these caps.
As a member of the workgroup I argued if these caps were good for government they should be good for the private sector as well. I lost the argument. Move forward a few years into health care transformation. We have statistics that show defensive medicine could account for 20 to 30 percent of the cost of health care. With the understanding we are trying to lower costs it would make sense to give medical providers some liability protection to limit unnecessary tests and procedures.
Another issue is the fact it is getting harder to bring providers to Oregon when they can go to states that actually offer them some protection. To this end I proposed an amendment to the reform bill in 2012 which would include all medical providers under the provisions of the Oregon Tort Claims Act referenced above. This was met with vigorous opposition from the trial lawyers. In the end we put a provision in the bill for the Governor to put together a task force to explore the issue, and I was a member of the task force.
After 9 months of meetings we came up with what should be appropriately called a “Safe Harbor” concept which became SB 483. What this allows for is the opportunity for medical providers and patients to be able to have a completely open discussion and potentially arrive at a settlement through a mediation process in a format that is “not discoverable”. What this means is none of these conversations or agreements can be used in court if at the end of the day a person still decides to sue.
I supported this bill and was actually one of the sponsors of it. I did this because I actually believe this new process could help some people get a full understanding of what went wrong and actually get some closure and peace of mind. A very small step in the direction we need to go. The Governor’s press release called it tort reform, but in the context most people understand it clearly is not. Unfortunately, with the current makeup of the legislature, we will not even have the opportunity to pass a measure to refer this issue to the ballot.
We continue to hear about all of the wonderful things we are doing in health care transformation. In reality all we have done so far is “rearrange the deck chairs” in the Medicaid program. Until we are willing to take a real look at some of the outstanding issues like liability reform my fear is all we will be doing is implementing Obama Care. We were supposed to be doing something Oregon specific and my fear is just following the federal act will break our budget the same as it is doing on the federal level. These are troubling times.