The experience of writing our bill

I had an incredibly crappy Christmas break. I left Seattle to go back to my parents’ home in rural Kansas for about a week. It was the first Christmas after my father’s death so it was difficult to deal with things at times, such as when we were taking some family pictures before opening presents. We were reviewing the pictures in the digital camera to see whether they were decent or if they needed to be retaken—and suddenly came across the last picture ever taken of Dad. That was rough. But the really crappy part was sitting in my room most all week trying to writing a draft of our bill that would require medical errors to be disclosed to patients in Kansas.

The bill needed to be ready to go by the time the Kansas legislature met in January, and I couldn’t put it off any longer.

Mom had started a draft based on previous Kansas bills that protected apologies from being used as evidence in court, so at least I had something to start with. I had two goals in writing the bill. The first was to fairly balance the right of patients to know what has happened in their healthcare (and their right to be compensated for errors) with the practical need for healthcare providers to be able to speak openly about errors without having the communication itself used against them in court. My second goal was to base the bill on best-practice recommendations of researchers who study medical errors and the healthcare system. How I went about this is documented on the justification page.

I spent quite a bit of time reading the previous bills from Kansas that protected apologies and some similar bills from other states. That was the first time I had ever attempted to read legislative bills, and I felt like I was wading knee-deep in gobbly-gook. I spent much of that week wondering if the language in the bills was intended to be horribly convoluted, or if they were just badly written. But I wanted our bill to be as clearly written as possible, so I meticulously worded and reworded the draft all week.

I learned that writing bills is very different from regular writing. Nothing in a bill can be implied; everything must be stated explicitly. For example, our bill requires disclosure to the patient. But of course if the patient has died, is a child, or unable to communicate, disclosure will be made to the appropriate family members. Unless there is no family, then disclosure will be made to the patient’s representative. Stating that idea every time disclosure was mentioned added a lot of words to the bill. So much for concise writing.

The other big challenge was to define every term we used. Bills have an entire section that is just terms and their definitions. For example, we needed to define the term “patient’s family member” in a way that would cover all possible family situations. We ended up basing our definition on one from a Colorado statute, defining a patient’s family member as “a patient’s spouse, parent, grandparent, stepfather, stepmother, child, grandchild, half brother, half sister, spouse’s parent and any other person who has a family-type relationship with the patient.” And because the bill requires that only a “serious unanticipated outcome or medical error” needs to be disclosed both orally and in writing (with “less serious anticipated outcomes or medical errors” needing to be disclosed only orally) I had the challenge of defining how I was using those terms.

Once the draft was complete and introduced to the Kansas House by Representative Kasha Kelley, it went through a process to turn into official legislative language. During the re-wording process every “will” was turned into “shall”, and the details were added to describe how fines for failure to disclose errors will be handled.

And now you can read the wording of the official draft.

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