Patients want answers that doctors can’t give them–for fear of a malpractice suit–Democratic Rep. Jim Riesberg, of Greeley, told a panel of lawmakers at the Capitol today. Afraid of litigation, the doctors shut down all communication with their patients when something goes wrong, and their patients are left with little recourse but to hire an attorney to learn what happened.
“They (the doctors) want open discussion with the patient, but they’ve been told by lawyers, ‘Don’t you dare,’ which has created a culture of fear rather than openness,” said Riesberg.
Riesberg’s House Bill 1283, heard today in the House Judiciary Committee, would throw open the doors of communication; it first needs to get final approval next week when the committee votes on the measure. Still pending are several amendments to the bill requested by the Colorado Trial Lawyers Association. The bill has already been approved by the House Health and Human Services Committee, which is chaired by Riesberg.
Colorado Medical Society President Mark Laitos told the panel that the medical profession wants the reform to enable it to explore other options in helping injured patients, to learn from human and systems errors, and to create a safer health-care system overall. Litigation does little to foster these goals, according to Laitos.
“Medical liability litigation doesn’t bring about a safer system that reduces the potential for error or unanticipated outcomes. It doesn’t help us learn from mistakes,” said Laitos.
“You can’t fix what went wrong if you are afraid that even acknowledging it and acting to fix it can be used against you in court.”
Most of the House Judiciary panel members, themselves attorneys, expressed support for the intent of the bill, but some had reservations about its potential legal implications. Committee Chair Rep. Claire Levy, D-Boulder, questioned why doctors should enjoy communication protections under the law that other professions don’t have.
“No other profession gets this kind of incentive in order to have this kind of relationship with their client,” said Levy.
Echoing Levy’s concerns, Natalie Brown, an attorney who spoke on behalf of the Colorado Trial Lawyers Association, said openness alone isn’t enough for evidence to be admissible in a court proceeding.
“Open communication means nothing without truthfulness,” said Brown.
Brown said while open communication could foster a better outcome for the patient and the medical professional, litigation should remain a viable option.
“It (communication) should be an option along with the judicial system. We don’t want it to be an alternative to the judicial system,” said Brown.
Yet, an attorney siding with the Colorado Medical Society, Kari Hershey, took issue with Brown’s insistence on including the “truthfulness” language, saying it would only shut the door on open communication because any discrepancy could be construed as “untruthful”.
“Fearful that they are going to be involved in years and years of litigation, doctors will be afraid to speak freely about what happened if their words are going to be used against them if new light is shed on the situation after the fact,” said Hershey. “This language will encourage litigation, and you may be providing a road map for someone to sue you.”
Riesberg said nothing in the measure will negate the ability of anyone to pursue a lawsuit if warranted and that the same standards of care must be met by the medical profession but perhaps, with the passage of the bill, patients will be able to get something they desire more than litigation.
“Patients are asking, ‘Will someone just please tell me what happened?’ We wrote this bill to take some steps in the right direction,” said Riesberg. “We are moving from nowhere to somewhere. I don’t speak doctor language and I don’t speak lawyer language, but I can speak for patients.”