Oregon’s new mediation law allows facilities, doctors and patients to settle malpractice claims or injuries through mediation before a lawsuit is filed. While hailed as wonderful new tort reform, yes sir!, this article discusses an aspect of the law that makes it easier for bad doctors to escape their past.
For me, this law is good tort reform. Medical malpractice is an area of the law that is really out of touch with the reality of the crumbling relationship between doctors and patients and implementing mediation into the process, especially in lieu of caps – as suggested by Republicans – is a step forward in changing the doctor/patient relationship. Although I do see the problem as articulated by the article: that mediating a potential medical malpractice case before a lawsuit is filed allows bad doctors to escape their past by failing to report the case to the national databank that keeps track of this kind of information, this is a kink that can and should be worked out.
I reiterate, however, the bigger issue that must be addressed is the doctor/ patient relationship. This is not new thinking but it must be said and said again. There are misunderstandings on both sides in regard to things like what medicine can do, what is really going on with a patient, and the issue of whether either the doctor or patient cares about the other in the relationship. The doctor/patient relationship is strained these days because it is rooted in distance, often fear, and a lack of personal communication. This must change at the encounter stage. Doctors are people and patients are people. Where is the reality of a relationship that contains trust and truth and collaboration and commitment? These are some of the qualities missing in so many current doctor/patient relationships.
However, the fact that mediation is being introduced prior to a lawsuit will allow a new kind of dialogue to occur. I realize it is after the fact, that is, after the relationship may have soured, yet my experience in the mediation field tells me any time their is the opportunity for real dialogue there is hope. The opportunity to move forward, to reestablish a new understanding/relationship, and for both parties to heal and right the relationship are very real and satisfying results – and for most, more satisfying than money. I am a fan and hoping that more states adopt a similar law.