Utah Legislature: Bill seeks to reduce medical malpractice lawsuits

SALT LAKE CITY — Communication between medical care providers and patients suing for malpractice is being strongly encouraged in a bill and a resolution that have overwhelmingly passed the House and are now pending in the Senate.

Such communication is normally off limits if there are threats of lawsuits being floated after a procedure gone awry. But lawmakers' attention has been focused on SB145, a long, complicated, toughly negotiated landmark agreement between medical care providers and trial lawyers who seek restitution for clients harmed by medical care or who seek compensation for personal injury.

Although malpractice and tort reform addressed in the bill is regarded by Utah insurance carriers here and nationwide as crucial to bringing health care costs under control, two short measures could well be much more effective in reducing the number of malpractice lawsuits, according to the proponents of HJR34 and HB408 .

HJR34 calls for amending a rule of evidence regarding expressions of apology in medical malpractice actions so that condolences for and explanations of what went wrong during a surgery or other procedure can be made without the statements being used in court in favor or against either side.

The measure, which is only 39 lines long, would take effect if the required two-thirds of lawmakers in both houses approve it.

HB408 authorizes the state Department of Health to establish a demonstration project that might provide a template of sorts for how open and honest dialogue between a health care provider and a patient could facilitate resolutions short of lawsuits.

The pilot program is part of the state's general effort to make health care more transparent and possibly more inclined to incorporate collaborative approaches in improving quality and avoiding expensive and acrimonious litigation that can result from what the health care industry euphemistically calls "unanticipated medical outcomes."

Although it is the exception nowadays, the hope is to show how the state and private care providers might routinely collaborate in ways that replace litigation, said Rep. Bradley Last, R-Hurricane, sponsor of both proposals.

The problem is "not communicating always increases ill will," while open, honest dialogue can often mitigate or soften a lot of hard feelings, Last said.

John T. Nielsen, Gov. Gary Herbert's health care reform advisor, said Monday that the proposals aren't meant as an attempt to get in the way of someone's right to bring legal action if they are harmed by a health care practitioner. But, he noted, health care centers in other parts of the country that have implemented the approach have seen remarkable increases in patients believing their grievances were heard and that the resolution of the matter worked out by both sides short of formal legal action was often deemed to be the right course by both sides.

e-mail: jthalman@desnews.com