The Oregon Patient Safety Commission gathers data about EDR by ask-ing individuals who initiated, or were the subjects of, a Request for Conver-sation to complete a “Resolution Report,” no matter whether an EDR con-versation occurred or not.280 There have been sixty-seven Requests for EDR since it began in 2014. Unfortunately, the Commission only received back Reports related to thirty-six EDR Requests and, of those Reports received, a
276. See, e.g., Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law:
The Case of Divorce, 88 YALE L.J. 950, 985–88 (1979).
277. Ben Depoorter, Law in the Shadow of Bargaining: The Feedback Effect of Civil Settle-ments, 95 CORNELL L.REV. 957, 974–77, 979–83 (2010) (discussing the substantive feedback ef-fect of settlements, a phenomenon in which settlement outcomes influence what parties and judges view as appropriate outcomes for subsequent, similarly situated cases).
278. Eisenberg, supra note 137 (noting that negotiation, like adjudication, is heavily influenced by legal norms, with parties frequently invoking principles, rules, and precedents to create leverage in bargaining).
279. OR.PATIENT SAFETY COMM’N,supra note 259, at 4 (explaining that no mechanism cur-rently exists for capturing total numbers of adverse medical incidents or medical malpractice claims in Oregon, which means there is no baseline for comparing the patient safety and medical liability pictures before and after EDR).
280. Id. at 3. Individuals can complete Reports even of EDR was declined or no conversation occurred. Id. at 7.
2017] TRIAL AND ERROR 299 third were incomplete.281 Nevertheless, information from the Reports sheds
some light on who elects to participate in EDR and why, what kinds of ad-verse incidents prompt EDR Requests, which topics parties discuss in EDR, as well as parties’ perceptions of the process.
When it comes to soliciting and participating in EDR, patients are far more likely to initiate a Request for Conversation than are healthcare profes-sionals.282 Male and female patients are equally likely to engage EDR; how-ever, older patients (in their fifties and sixties) are much more likely to re-quest EDR than their younger counterparts.283 Adult children or the spouses of patients sought EDR more often than parents or guardians of patients.284 In forty-two percent of all patient Requests for EDR for the first two years, at least one healthcare professional agreed to participate.285 There is no data explaining why healthcare providers and facilities affirmatively accepted EDR Requests although there is information about why they might decline.
Healthcare providers most often declined patient EDR Requests because they intended to use an alternative process or were advised against participation by their liability insurer or legal counsel.286 Healthcare facilities primarily declined patient Requests for EDR because they elected to use their own, internal mechanisms to resolving patient complaints or because the incident involved someone not employed by the facility.287 Interestingly, no healthcare professionals cited fear of reporting to the Oregon Medical Board or the NPDB as a reason for refusing to participate.288
EDR Requests arose from different kinds of adverse medical incidents and EDR conversations included a range of topics. Both patients and healthcare providers asked for EDR following invasive surgical procedures or when there was a delay in care.289 When EDR conversations took place, providers described discussing many more topics than did patients. Providers said they talked with the patients about an adverse event and why it occurred;
281. Id. at 4.
282. Id. at 4. Out of sixty-seven Requests for EDR, fifty-seven came from patients and ten came from healthcare professionals. Id. at 5.
283. Id. at 11. Patient-initiated EDR Requests may be directed at multiple healthcare providers or facilities and each of these provider entities can choose to accept or decline the Request. Id. at 5.
284. Id. at 12.
285. Id. at 5.
286. Id. at 5–6. A few providers indicated they had declined to participate because they learned that the facility would not be participating and elected not to participate either; that they did not believe the incident met the definition of an adverse healthcare event; or that they had already ad-dressed the incident through another process. Id. at 6.
287. Id. at 5–6. A few healthcare facilities declined because they believed the event was specific to the particular physician involved. Id. at 6.
288. Id. at 5.
289. Id. at 7. Patients also asked for EDR for events involving medication, healthcare-related infections, and medical devices, among others. Id.
300 MARYLAND LAW REVIEW [VOL. 76:247 information about an error that occurred; patient’s health, future treatment, and follow-up; as well as how additional information would be shared mov-ing forward.290 Patients, however, described discussing a much narrower set of issues, such as an adverse event and why it happened, that a medical error did not occur, and whether or not there might be compensation.291 One no-table finding from parties’ Reports is that their accounts of EDR conversa-tions rarely overlap and sometimes even contradict each other.292
Perhaps the most intriguing data gleaned from the Resolution Reports reveals stark differences in patients’ and healthcare professionals’ percep-tions of the EDR process. First, most healthcare providers indicated they were satisfied or very satisfied with the EDR process while patients’ re-sponses ranged more widely from very satisfied to not at all satisfied, with more than half indicating they were not at all satisfied.293 Second, in a couple of cases, the providers said a satisfactory resolution was reached whereas the patients said that nothing was resolved and that the healthcare professionals had shown a “lack of accountability or respect.”294 And, third, no correlation could be found between whether or not an apology was extended during EDR and either the parties’ satisfaction with the process or their belief that the underlying issue had been resolved.295 In fact, healthcare professionals re-ported making offers of apology far more often than patients rere-ported receiv-ing them, suggestreceiv-ing that the parties may have different views on what passes for an apology.296
The Commission draws some important lessons from the data collected thus far. For example, it observes that healthcare organizations that respond promptly to patients’ EDR requests are far more likely to reach satisfactory resolutions in EDR because the longer patients are left without information the more likely they are to lose trust in the resolution process, become suspi-cious that the provider is hiding something, and feel anxious or disre-spected.297 The recommendation for healthcare providers and facilities is to
290. Id. at 9.
291. Id. at 9.
292. Id. at 11. In one case, the provider reported providing information about an error that occurred, which was the exact opposite of what the patient reported (information that an error did not occur). Id.
293. Id. at 9. The number of responses is very small, only twenty-five total, which makes it difficult, if not impossible to draw any kind of conclusion about EDR satisfaction ratings.
294. Id. at 10. The Commission’s annual report hypothesize that the patients’ perception of disrespect stems from a healthcare facility or provider’s lack of participation in the EDR process and that securing full participation from healthcare professionals is an important piece of patients’
satisfaction. Id.
295. Id. at 10. Indeed, Resolution Reports indicated that resolution could be reached without an apology.
296. Id. at 11. In six cases, the Commission received responses from both patient and healthcare professionals that mentioned the offer of an apology. Healthcare professionals reported giving an apology in each of the six cases whereas only three patients reported receiving an apology. Id.
297. Id. at 12.
2017] TRIAL AND ERROR 301 engage patients promptly after an adverse incident, ideally within
seventy-two hours, with a preliminary conversation.298 Another important lesson is that adverse incidents involving multiple stakeholders—the healthcare facil-ity where the incident occurred, the facilfacil-ity’s liabilfacil-ity insurer, all the healthcare professionals plus their employers and liability insurers—can be-come enormously complex and difficult to coordinate for EDR, particularly if they have different views of who bears responsibility for the incident.299 The Commission recommends establishing clear lines of communication among potential stakeholders in advance so that, in the event they receive a patient request for EDR, they can respond promptly and in coordination.300 And, finally, another clear lesson from the first two years of EDR is that pa-tients and their families need more help navigating the process.301 Help could come in the form of a social worker or even a legal advocate, discussed fur-ther below,302 as well as the insertion of a mediator to facilitate EDR conver-sations. The apparent ubiquity of misunderstanding about what is said during EDR and the mismatch in parties’ perceptions of the process is a clarion call for a mediator. As the Commission observes, healthcare professionals may rely on difficult-to-understand technical language or “continue on script”
when patients are experiencing strong emotions and perhaps “temporarily unable to listen.”303 Mediators, particularly those trained in facilitation, can help clarify what parties are saying, what is being heard, and how they view one another.304
All of these recommendations from the Commission surely will improve the functioning of the EDR program. Nevertheless, because EDR departs from long established legal norms and procedures, it raises additional con-cerns to those flagged by the Commission that need further attention.