The MEDiC Act of 2005: a new approach to safety

AORN Journal, Dec, 2005 by E. Catherine Becker

The Institute of Medicine's 1999 report, To Err is Human: Building a Safer Health System, states that medical errors are the eighth leading cause of death in the United States and that 44,000 to 98,000 medical error-related deaths occur each year. (1) The medical liability system attempts to address these occurrences by identifying the causes of medical errors, remediating those causes to prevent recurrence, and compensating individuals injured by medical errors. The current liability system, however, can deter healthcare providers from reporting medical errors because it subjects them to potential legal liability.

The Institute of Medicine's strategy for improvement includes

   identifying and learning from errors
   by developing a nationwide public
   mandatory reporting system and ...
   encouraging healthcare organizations
   and practitioners to develop
   and participate in voluntary reporting
   systems. (1)

This system can only be effective if providers receive assurance of legal protection from their medical error or patient safety disclosures. In an effort to address the goal of open disclosure of medical errors while providing some legal protection for physicians, a number of states have implemented policies of vigorous disclosure of medical errors, apologies for errors, and early negotiations for reasonable compensation for the injured patient. (2) Although these efforts have been successfully implemented at several state and local levels, they do not address the Institute of Medicine's recommendation that such patient safety reporting take place on the national level.

Members of the 109th United States Congress have taken notice, and a number of initiatives have been proposed to encourage advances in health information technology. (3) None of the health technology legislation introduced to date, however, has addressed issues of medical liability--until now.

SENATE BILL 1784

On Sept 28, 2005, Sen Hillary Rodham Clinton (D-NY) and Sen Barack Obama (D-Ill) introduced SB 1784, "The National Medical Error Disclosure and Compensation Act of 2005," also known as the MEDiC Act. (4) This bill would become an extension of the recently passed Patient Safety and Quality Improvement Act of 2005, which was signed into law by President George W. Bush in June 2005 and is aimed at providing liability protections for physicians who disclose medical errors to patients and participate in a national error reporting system. (5) According to the language in the bill, the MEDiC Act's purpose is to "promote a culture of safety within hospitals, health systems, clinics, and other sites of health care, through the establishment of a national [MEDiC] program." (6) The MEDiC Act would establish an Office of Patient Safety and Health Care Quality to implement and oversee a national patient safety database, as well as the MEDiC Program. (6) The MEDiC Program has four stated goals:

* to improve the quality of health care by encouraging open communication between patients and healthcare providers about medical errors and other patient safety events;

* to reduce rates of preventable medical errors;

* to ensure patients have access to fair compensation for medical injury due to medical error, negligence, or malpractice; and

* to reduce the cost of medical liability insurance for physicians, hospitals, health systems, and other healthcare providers. (6) In her statement before the

Senate, Sen Clinton explained the purpose of the bill by stating,

   we build on the patient
   safety bill that was signed
   into law earlier this summer
   by creating a voluntary
   program to encourage
   disclosure of errors [and]
   an opportunity to enter
   negotiations and early
   settlements, while at the
   same time, protecting
   patients' rights and providing
   liability protection
   for healthcare providers
   who participate in the program.
   Our bill is designed
   to bridge the gap between
   the medical liability and
   patient safety systems for
   the benefit of patients and
   providers. (7)

The MEDiC program will provide funding to healthcare providers that implement systems to promptly disclose medical errors to their patients and offer fair compensation to the patient if the provider is at fault. (6) Each participating practice or organization will appoint a patient safety officer who will analyze medical errors, patient safety events, or notices of legal action related to the medical liability of a health care provider to determine if the proper standard of care was followed. (6)

Additionally, the MEDiC Act would create a national patient safety database that would serve as a repository for confidential patient safety data submitted by participants in the MEDiC program. (8) Participants must agree to report medical errors and other patient safety events to the database so that it can be analyzed by experts from or appointed by the newly created Office of Patient Safety and Health Care Quality. These experts will make recommendations for changes in practice techniques to prevent similar medical errors from occurring in the future. (4) The database also will serve as a means to establish best practices while increasing accountability in the healthcare system. (7) By reducing administrative and legal costs for medical malpractice claims, the MEDiC Act would in return require that participating medical liability insurance companies and healthcare providers apply a percentage of their cost savings toward initiatives to improve patient safety and reduce medical errors. (8) The bill also requires that, to the extent possible, some of these cost savings be passed along to providers in the form of lower malpractice insurance premiums. (7) The MEDiC Act would establish grant programs to encourage participation in the program and fund a number of studies to assess the medical error landscape in terms of patient safety and cost savings before, during, and as a result of the MEDiC Program. (6)