HOUSE JOINT RESOLUTION NO. 101 Offered January 9, 2008 Prefiled January 8, 2008 Directing the Joint Commission on Health Care to study the use of disclosure, apologies, alternative dispute resolution, and other measures in the case of medical errors and adverse medical outcomes and the impact of such measures on the cost and quality of care, patient confidence, and the medical malpractice system. Report. ---------- Patron-- O'Bannon ---------- Committee Referral Pending ----------

WHEREAS, much has been written recently about the incidence of medical errors, the need to disclose medical errors and adverse medical outcomes to patients and their families, and the medical malpractice crisis; and

WHEREAS, the American Medical Association's Code of Medical Ethics provides at E-8.12 that "it is a fundamental ethical requirement that a physician should at all times deal openly and honestly with patients" and that where "a patient suffers significant medical complications that may have resulted from the physician's mistake or judgment...the physician is ethically required to inform the patient of all the facts necessary to ensure understanding of what has occurred"; and

WHEREAS, the Joint Commission on Accreditation of Healthcare Organizations requires certain disclosure by hospitals of medical errors and unanticipated outcomes to patients and their families and the initiation of efforts to prevent future medical errors; and

WHEREAS, § 8.01-581.20:1 of the Code of Virginia permits certain gestures and statements of sympathy or benevolence to be made by providers to patients and family members in connection with a medical error or adverse medical outcome without the gesture or statement being admissible as evidence of liability, but does not make a statement of fault under such circumstances admissible; and

WHEREAS, many studies and demonstration projects in other jurisdictions have suggested that prompt and candid disclosure of medical errors and adverse medical outcomes by providers to patients and their families and the voluntary use of creative alternative dispute resolution techniques may have a number of benefits to the health care system, including improved consumer and provider confidence in and satisfaction with the system, prompt and fair resolution of possible claims, enhanced reporting of medical errors and adverse medical outcomes and improved procedures to reduce the likelihood of recurrence, improved quality of care, a reduction in the volume and cost of litigation, better patient-provider relationships, and substantial cost savings for the health care system; and

WHEREAS, it would be beneficial to patients, providers, malpractice insurers, and the health care system to study whether and how to implement such measures in the Commonwealth; and

WHEREAS, the Health Law Section of the Virginia Bar Association has volunteered to assist the Joint Commission on Health Care with any aspect of such a study if requested; now, therefore, be it

RESOLVED by the House of Delegates, the Senate concurring, That the Joint Commission on Health Care be directed to study the use of disclosure, apologies, alternative dispute resolution, and other measures in the case of medical errors and adverse medical outcomes and the impact of such measures on the cost and quality of care, patient confidence, and the medical malpractice system.

In conducting its study, the Commission shall review legislation and initiatives in other jurisdictions, consider the need for change to existing Virginia law, and recommend appropriate ways to implement measures in Virginia to achieve these ends, whether on a demonstration basis or for the entire system.

Technical assistance shall be provided to the Commission by the Department of Health and the Department of Health Professions. All agencies of the Commonwealth shall provide assistance to the Commission for this study, upon request.

The Commission shall complete its meetings by November 30, 2008, and the Director shall submit to the Division of Legislative Automated Systems an executive summary of its findings and recommendations no later than the first day of the 2009 Regular Session of the General Assembly. The executive summary shall state whether the Commission intends to submit to the General Assembly and the Governor a report of its findings and recommendations for publication as a House or Senate document. The executive summary and report shall be submitted as provided in the procedures of the Division of Legislative Automated Systems for the processing of legislative documents and reports and shall be posted on the General Assembly's website.