Oregon recently passed a law, Senate Bill 483, creating a new mediation process for patients injured by medical mistakes. The law allows injured patients to confidentially discuss, at a mediation, their claim and a possible settlement with the medical provider where the alleged negligence occurred. What is the upside to this bill? Participation is obviously voluntary. Most significantly, the discussions would not be admissible in court if a lawsuit is eventually filed, which proponents hope would encourage frank discussion that could stave off a lawsuit.
The Oregon governor, John Kitzhaber, a doctor, called the bill “the holy grail of medical and legal politics.” While that may be hyperbole, proponents of the law claim that it represents a unique agreement between doctors and lawyers, who are often at odds over efforts to limit the costs of health care lawsuits. They claim that doctors would have a better opportunity to learn from mistakes and could back away from practicing “defensive medicine” by ordering tests medically unnecessary in order to protect themselves from potential lawsuits.
Critics argue that it will do nothing to reduce medical costs because it does not cap the amount of money that juries can award to patients injured by medical errors or the high premiums for medical liability insurance and that it will result in higher administrative costs for insurance companies, which in turn could actually drive premiums higher for doctors.
This raises the question, isn’t this what Rule of Evidence 408 states anyway? Rule 408, which applies in both Oregon and Nebraska, states that eevidence of furnishing or offering valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. However, there are exceptions to this rule, such as when the settlement conversations are offered to prove bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. Oregon’s law may very well do away with these limited exceptions. Time will tell if other states follow suit.