Will Early Discussion And Resolution (EDR) Be The Future Of Medical Malpractice Actions?

There are thousands of fatalities and over one million injuries that result from preventable medical mistakes in the U.S. annually. Ideally, reforms seek to reach a point where frivolous claims are held to a minimum, while still allowing those victimized by medical negligence to rightfully pursue compensation. Many options have been introduced encouraging the parties to engage one another and discuss potential resolutions that avoid the need for costly and time-consuming litigation. Recently in Oregon, an Early Discussion & Resolution (EDR) system has been introduced that has been successful thus far.

EDR Basics

The program is commenced by either party requesting a “conversation” through the state’s Patient Safety Commission. This conversation will take place if both parties agree to participate. The conversations are not deemed as malpractice claims; therefore, they do not have reporting requirements and the discussions are exclusively oral. These conversations are also considered confidential and may not be construed as an admission of liability, or otherwise used in future events. If no resolution can be reached, a mediator may be used, and the plaintiff still retains the right to formally bring a claim in court.

Maryland Law Review

Lydia Nussbaum, a law professor at UNLV, formally reviewed the EDR process and reported it in the Maryland Law Review. She began by analyzing systems of dispute resolution, usage of screening panels, and forms of arbitration. Nussbaum found that most malpractice actions are quite “adversarial” and most systems are unable to effectively function amid the contentiousness and frustration. She finds the existing systems foster breakdowns in communication, encourage the practice of “defensive medicine”, and increase overall healthcare costs. EDR seems to effectively address these concerns.

Oregon EDR Findings

There were several key findings including:

• It is critical that after an adverse medical event, there should be communication with the patient and family as soon as possible.
• Initially, the creation of a “confidential space” for meaningful discussion is critical.
• It may be necessary to determine how to incentivize medical practitioners to initiate these conversations voluntarily.
• Patients need reasonable access to informal advice from a legal professional
• That the provisions involving mandatory reporting requirements to a central database should be reconsidered.

Alternative Dispute Resolution (ADR)

In Maryland, there is a Health Care Alternative Dispute Resolution Office (HCADRO) that manages a system of mandated arbitration for medical liability claims. Claims are brought before a panel of three arbitrators to assess the claim. Some form of ADR is used in many states. ADR was referenced in the recent implementation of the Affordable Care Act (Obamacare), which emphasized the further promotion of ADR. Both the legal and medical communities have conflicting opinions regarding the effectiveness of Maryland’s ADR system.

Outlook for EDR

The Oregon EDR program is still relatively new, with approximately 100 requests for conversation thus far, but looks promising. The state of Connecticut has been considering a version of the model, which may prompt others to consider it. Supporters feel it will accomplish the goals of increasing engagement among the parties, reducing litigation, and improving patient care and safety.