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OREGON PATIENT SAFETY COMMISSION

 

DIVISION 35
EARLY DISCUSSION
AND RESOLUTION
325-035-0001
Definitions
As used in OAR 325-035-0001 to 325-035-0050:
(1) “Adverse health
care incident” means an objective, definable and unanticipated consequence
of patient care that is usually preventable and results in the death of or serious
physical injury to the patient.
(2) “Business day”
means any day other than a federal or State of Oregon legal holiday or a day other
than a day on which offices of the State of Oregon are otherwise authorized by law
to remain closed.
(3) “Commission”
means the Oregon Patient Safety Commission.
(4) “Discussion”
means:
(a) All communications, written
and oral, that are made in the course of a discussion under Oregon Laws 2013, Chapter
5, Section 3; and
(b) All memoranda, work products,
documents and other materials that are prepared for or submitted in the course of
or in connection with a discussion under Oregon Laws 2013, Chapter 5, Section 3.
(5) “Early Discussion
and Resolution” means the confidential process established in Oregon Laws
2013, Chapter 5 that includes, but is not limited to: the filing a notice of adverse
health care incident with the Commission by a patient, health care provider or health
care facility, discussions with all parties to seek resolution about the incident,
and mediation if necessary to attempt to resolve the matter.
(6) “Health care facility”
as defined in ORS 442.015 means a hospital, a long term care facility, an ambulatory
surgical center, a freestanding birthing center, or an outpatient renal dialysis
center.
(7) “Health care provider”
means a person practicing within the scope of the person’s license, registration
or certification to practice as:
(a) A psychologist under
ORS 675.030 to 675.070, 675.085 and 675.090;
(b) An occupational therapist
under ORS 675.230 to 675.300;
(c) A physician under ORS
677.100 to 677.228;
(d) An emergency medical
services provider under ORS chapter 682;
(e) A podiatric physician
and surgeon under ORS 677.820 to 677.840;
(f) A registered nurse under
ORS 678.010 to 678.410, including nurse practitioner;
(g) A dentist under ORS 679.060
to 679.180;
(h) A dental hygienist under
ORS 680.040 to 680.100;
(i) A denturist under ORS
680.515 to 680.535;
(j) An audiologist or speech-language
pathologist under ORS 681.250 to 681.350;
(k) An optometrist under
ORS 683.040 to 683.155 and 683.170 to 683.220;
(l) A chiropractor under
ORS 684.040 to 684.105;
(m) A naturopath under ORS
685.060 to 685.110, 685.125 and 685.135;
(n) A massage therapist under
ORS 687.011 to 687.250;
(o) A direct entry midwife
under ORS 687.405 to 687.495;
(p) A physical therapist
under ORS 688.040 to 688.145;
(q) A medical imaging licensee
under ORS 688.445 to 688.525;
(r) A pharmacist under ORS
689.151 and 689.225 to 689.285;
(s) A physician assistant
under ORS 677.505 to 677.525; or
(t) A professional counselor
or marriage and family therapist under ORS 675.715 to 675.835.
(8) “Location operated
by a health care facility” means a satellite as defined by OAR 333-500-0010.
(9) “Mediation”
as defined in ORS 36.110(5) means a process in which a mediator assists and facilitates
two or more parties to a controversy in reaching a mutually acceptable resolution
of the controversy and includes all contacts between a mediator and any party or
agent of a party, until such time as a resolution is agreed to by the parties or
the mediation process is terminated.
(10) “Minor”
means anyone under the age of 18 but does not mean a minor who has been emancipated
in accordance with ORS 419B.550 to 419B.558.
(11) “Notice”
means a written or oral report, submitted by a patient, health care provider or
health care facility to the Commission in the form and manner specified in OAR 325-035-0010,
that indicates the filer’s desire to engage in Early Discussion and Resolution.
(12) “Party or Parties”
means any health care facility, health care provider, employer of a health care
provider, and patient involved in the adverse health care incident.
(13) “Patient”
means:
(a) The patient; or
(b) If the patient is a minor,
is deceased or has been medically confirmed by the patient’s treating physician
to be incapable of making decisions for purposes of Oregon Laws 2013, Chapter 5,
Sections 1 to 10, the patient’s representative as provided in Oregon Laws
2013, Chapter 5, Section 8.
(14) “Serious physical
injury” means an injury that:
(a) Is life threatening;
or
(b) Results in significant
impairment of a body function or significant damage to a body structure; or
(c) Necessitates medical
or surgical intervention to prevent, mitigate or correct significant impairment
of a body function or significant damage to a body structure.
Stat. Auth.: Oregon Law 2013, Ch. 5
Stats. Implemented: Oregon
Law 2013, Ch. 5
Hist.: PSC 2-2014, f. 6-12-14,
cert. ef. 7-1-14
325-035-0005
Filing a Notice of Adverse Health
Care Incident
When an adverse health care incident
occurs in a health care facility, a location operated by a health care facility,
or outside a health care facility and the incident involves a health care provider,
the health care facility, health care provider or employer of the health care provider,
or a patient, may file a notice with the Commission in accordance with this rule.
The filing of a notice enables the parties to engage in Early Discussion and Resolution.
(1) A notice may be filed
with the Commission electronically, by telephone, or by submitting a written form
prescribed by the Commission that contains the information described in sections
(3) or (5) of this rule.
(2) A notice should not be
filed with the Commission if:
(a) The incident does not
meet the definition of an adverse health care incident;
(b) The adverse health care
incident occurred before July 1, 2014;
(c) The adverse health care
incident occurred outside of Oregon;
(d) The adverse health care
incident did not involve at least one health care facility, location operated by
a health care facility, or health care provider; or
(e) The filer is an inmate
as defined in ORS 30.642.
(3) A notice filed by a health
care facility, a health care provider, or an employer of a health care provider
must include, but is not limited to:
(a) Incident date (this may
be an approximation);
(b) Incident location; and
(c) Incident description.
(4) A notice filed by a health
care facility or an employer of a health care provider shall not include the name
of a health care provider.
(5) A notice filed by a patient
must include, but is not limited to:
(a) Patient name;
(b) Patient date of birth;
(c) Incident date (this may
be an approximation);
(d) Incident description;
(e) Incident location; and
(f) Adequate contact information
for any health care facility or health care provider involved in the incident so
the Commission may notify the facility or provider that a notice has been filed.
Stat. Auth.: Oregon Law 2013, Ch. 5,
Secs. 2, 9
Stats. Implemented: Oregon
Law 2013, Ch. 5, Secs. 2, 9
Hist.: PSC 2-2014, f. 6-12-14,
cert. ef. 7-1-14
325-035-0010
Notifying a Health Care Facility,
Health Care Provider, or Patient of a Notice of Adverse Health Care Incident
(1) When the Commission receives a notice
from a patient, the Commission must notify all health care facilities and health
care providers named in the notice, using email, telephone, or the US mail as appropriate.
The Commission will attempt to contact all health care facilities and health care
providers within seven business days of receiving the notice. If a patient is unable
to provide accurate contact information for a health care facility or a health care
provider, the Commission must attempt to notify the health care facility or health
care provider and provide the required notice.
(a) If the Commission is
not able to identify and contact a health care facility or a health care provider,
the Commission must notify the patient in writing that unless accurate contact information
for the health care facility or health care provider is received by the Commission
within 30 days, the Commission will consider the matter closed.
(b) If the Commission does
not receive accurate contact information for the health care facility or health
care provider within 30 days, the Commission must inform the patient in writing
that the Commission has closed the matter.
(2) A health care facility,
health care provider, or employer of a health care provider who files a notice must:
(a) Provide a copy of the
notice to the patient; and
(b) Notify any health care
provider involved in the adverse health care incident of the notice.
(3) The Commission must notify
a health care provider or health care facility of any notice that is filed by a
patient, regardless of whether it appears that incident falls within the definition
of an adverse health care incident. A health care provider or health care facility
must make its own determination, after being notified by the Commission that a notice
has been filed, as to whether the incident is an adverse health care incident such
that the parties may engage in discussions.
Stat. Auth.: Oregon Law 2013, Ch. 5,
Sec. 9
Stats. Implemented: Oregon
Law 2013, Ch. 5, Secs. 2, 9
Hist.: PSC 2-2014, f. 6-12-14,
cert. ef. 7-1-14
325-035-0015
Procedures for Conducting Discussions
(1) A health care facility, health care
provider, or employer of a health care provider who files or is named in a notice
of adverse health care incident and the patient who is the subject of the adverse
health care incident may engage in Early Discussion and Resolution in an attempt
to resolve the incident.
(2) If the parties choose
to participate in Early Discussion and Resolution, the initial discussion should
take place as soon as possible and generally within 72 hours of a health care facility
or health care provider filing a notice or being informed by the Commission that
a notice was filed by a patient, and conclude within 180 days of the initial filing
of the notice.
(3) The parties may agree
to extend the 180 day time limit described in section (2) of this rule if they also
agree to extend the statute of limitations applicable to a negligence claim.
(4) Each party involved in
Early Discussion and Resolution may include other persons in the discussion, including
a mediator as outlined in OAR 325-035-0035.
(5) The health care facility,
health care provider, or employer of a health care provider who chooses to participate
in Early Discussion and Resolution must notify the patient and all other parties
involved in the adverse health care incident of the date, time, and location of
the discussions and shall reasonably accommodate all persons who have been invited
to participate by the parties and wish to attend.
(6) Discussions may include:
(a) An explanation of what
occurred and the implications for the patient’s health and well-being;
(b) An explanation of the
causes of the incident;
(c) An apology or expression
of regret to the patient;
(d) The steps the health
care facility or health care provider will take to prevent future occurrences of
the adverse health care incident; and
(e) Compensation for the
adverse health care incident.
(7) If the health care facility
or health care provider is not going to make an offer of compensation, the health
care facility or health care provider may communicate that to the patient orally
or in writing.
(8) If compensation is offered,
the offer must be in writing and the patient must be advised by the health care
facility or health care provider of their right to seek legal advice before accepting
the offer.
(9) Discussions and offers
of compensation made in Early Discussion and Resolution:
(a) Do not constitute an
admission of liability;
(b) Are confidential and
may not be disclosed; and
(c) Except as provided in
Oregon Laws 2013, Chapter 5, Section 3, are not admissible as evidence in any subsequent
adjudicatory proceeding and may not be disclosed by the parties in any subsequent
adjudicatory proceeding.
Stat. Auth.: Oregon Law 2013, Ch. 5,
Sec. 3, 9
Stats. Implemented: Oregon
Law 2013, Ch. 5, Secs. 3, 4, 9
Hist.: PSC 2-2014, f. 6-12-14,
cert. ef. 7-1-14
325-035-0020
Filing Reports about Resolution
(1) The Commission must request a confidential
report indicating the status of the matter from the person that filed the notice
within 180 days after the notice was filed. If the matter is not resolved 180 days
after the notice was filed, the Commission may request additional reports from the
person that filed the notice as necessary.
(2) A report may include:
(a) Whether the matter has
been resolved;
(b) Whether an apology was
offered or there were expressions of regret;
(c) Whether the health care
facility or health care provider agreed to take steps to prevent future occurrences
of the adverse health care incident;
(d) How many oral communications,
including face-to-face discussions, the parties have had;
(e) Who has participated
in the oral communications, including face-to-face discussions;
(f) Whether the parties engaged
in mediation; and
(g) Whether compensation
was offered and accepted.
(3) If an offer of compensation
is accepted by a patient at any point during discussions, the health care facility
or provider must notify the Commission.
(4) If the parties to Early
Discussion and Resolution resolve the matter, the person who filed the notice may
submit a report about resolution as described in section (1) of this rule.
(5) If resolution is not
achieved within 180 days, the Commission may request a report about resolution at
a later date.
(6) The Commission may accept
a report about resolution from an individual to whom the person who filed the notice
has delegated authority to submit the report.
Stat. Auth.: Oregon Law 2013, Ch. 5,
Sec. 9
Stats. Implemented: Oregon
Law 2013, Ch. 5, Secs. 3, 9
Hist.: PSC 2-2014, f. 6-12-14,
cert. ef. 7-1-14
325-035-0025
Mediation
(1) If a discussion as described in
OAR 325-035-0015 does not result in the resolution of an adverse health care incident,
the patient and the health care facility or health care provider who files or is
named in a notice of adverse health care incident may enter into mediation.
(2) The parties who have
agreed to participate in mediation shall bear the cost of mediation equally unless
otherwise mutually agreed.
(3) Other persons that may
participate in the mediation include, but are not limited to:
(a) Members of the patient’s
family, at the discretion of the patient;
(b) Attorneys for the patient,
the health care facility and the health care provider;
(c) Professional liability
insurance carriers;
(d) Risk management personnel;
and
(e) Any lien holder with
an interest in the dispute.
(4) Mediation under this
rule is subject to ORS 36.110 through 36.238.
Stat. Auth.: Oregon Law 2013, Ch. 5,
Sec. 9
Stats. Implemented: Oregon
Law 2013, Ch. 5, Secs. 5, 9
Hist.: PSC 2-2014, f. 6-12-14,
cert. ef. 7-1-14
325-035-0030
Adding a Mediator to the Mediator
Panel
(1) The Commission must develop and
maintain a panel of mediators that meet the qualifications established in this rule.
(2) To be included in the
Commission’s panel of mediators, an individual must meet the qualifications
set forth is OAR 325-035-0035 and provide information to the Commission about themselves
and their qualifications by completing and submitting the mediator panel application
on the Commission’s website (http://oregonpatientsafety.org). Information
provided must include but is not limited to:
(a) Contact information;
(b) Education level;
(c) Number of mediations
conducted, approximate number of hours of mediation experience, and approximate
number of hours dealing with cases or matters involving medical malpractice or personal
injury;
(d) General mediator training;
(e) Specific subject training;
(f) Continuing education;
(g) Professional standards
of mediation practice to which the mediator adheres;
(h) Counties of Oregon that
they are willing to serve;
(i) Languages spoken;
(j) Website links, if applicable;
and
(k) Fee information.
Stat. Auth.: Oregon Law 2013, Ch. 5,
Secs. 5, 9
Stats. Implemented: Oregon
Law 2013, Ch. 5, Secs. 5, 9
Hist.: PSC 2-2014, f. 6-12-14,
cert. ef. 7-1-14
325-035-0035
Mediator Qualifications
(1) The Commission will consider a mediator
to have met the required qualifications if the individual has:
(a) Formally mediated 50
cases or engaged in 500 hours of formal mediation;
(b) Completed 30 hours of
education meeting the standards in Appendix A or equivalent training;
(c) Received an orientation
to Early Discussion and Resolution, made available by the Commission;
(d) Completed at least 16
additional hours of professionally accredited subject-specific training (which may
include, but is not limited to: training related to medicine, health care, medical
or hospital culture, health care transformation, mental health, grief counseling,
psychology, risk management, key substantive, procedural or evidentiary laws relating
to personal injury or adverse health care incidents, and adverse incident mediation
discussion or role-playing);
(e) Have at least 150 hours
of experience dealing with cases or matters that involve medical malpractice or
personal injury as a mediator, facilitator, doctor, nurse, social worker, judge,
consultant, psychologist, or attorney; and
(f) Provided the ethics and
standards of practice to which they adhere.
(2) A mediator may request
a waiver from the Commission from any mediator qualification. Such a request must
be in writing and must describe why the qualification cannot be met and the facts
that otherwise make the mediator qualified to be listed on the panel. The Commission
may, in its discretion, waive a requirement for mediator qualification if it appears
that the mediator has qualifications or the experience necessary to appropriately
mediate matters involving adverse health care incidents.
[ED. NOTE: Appendices referenced are not included in rule text. Click here for PDF copy of appendices.]
Stat. Auth.: Oregon Law 2013, Ch. 5,
Secs. 5, 9
Stats. Implemented: Oregon
Law 2013, Ch. 5, Secs. 5, 9
Hist.: PSC 2-2014, f. 6-12-14,
cert. ef. 7-1-14
325-035-0040
Publication of Mediator Panel
(1) If a mediator has submitted information
in accordance with OAR 325-035-0030 and attested that he or she meets the qualifications
in OAR 325-035-0035, the Commission must publish the mediator’s name, contact
information, and responses to questions asked on the mediator panel application
on the Commission’s website.
(2) Annually, the Commission
must contact all listed mediators requesting that they update or confirm their information
and qualifications. Mediators who do not confirm their information or continuing
qualifications within the timeframe established by the Commission must be removed
from the list, but may reapply for inclusion. Mediators may update or confirm their
information at any time.
(3) If at any time the Commission
discovers that a mediator does not meet qualifications, they will be removed from
the list.
Stat. Auth.: Oregon Law 2013, Ch. 5,
Sec. 9
Stats. Implemented: Oregon
Law 2013, Ch. 5, Secs. 5, 9
Hist.: PSC 2-2014, f. 6-12-14,
cert. ef. 7-1-14
325-035-0045
The Role of the Administrative Entity
(1) The Commission shall use notices
of adverse health care incidents to:
(a) Establish quality improvement
techniques to reduce patient care errors that contribute to adverse health care
incidents;
(b) Develop evidence-based
prevention practices to improve patient outcomes and disseminate information about
those practices; and
(c) Upon the request of a
health care facility or health care provider, assist the facility or provider in
reducing the frequency of a particular adverse health care incident, including,
but not limited to, determining the underlying cause of the incident and providing
advice regarding preventing reoccurrence of the incident.
(2) The Commission may disseminate
information relating to a notice of adverse health care incident to the public and
to health care providers and health care facilities not involved in the incident
as necessary to meet the goals described in section 1 of this rule. Information
disclosed must not identify a health care facility, health care provider or patient
involved in the adverse health care incident.
(3) The Commission may not
disclose any information provided pursuant to a discussion under Oregon Laws 2013,
Chapter 5, Section 3 to a regulatory agency or licensing board.
(4) The Commission may use
and disclose information provided pursuant to a discussion under Oregon Laws 2013,
Chapter 5, Section 3 as necessary to assist a health care facility or health care
provider involved in an adverse health care incident in determining the cause of
and potential mitigation of the incident. If the Commission discloses information
under this section to a person not involved in the incident, the information may
not identify a health care facility, health care provider or patient involved in
the incident.
(5) The Commission will periodically
disseminate aggregate information about incidents reported in notices and what has
been learned about successful resolution. Additional information may be disseminated
depending on data available.
Stat. Auth.: Oregon Law 2013, Ch. 5,
Sec. 9
Stats. Implemented: Oregon
Law 2013, Ch. 5, Secs. 9, 10
Hist.: PSC 2-2014, f. 6-12-14,
cert. ef. 7-1-14





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