In an earlier post I wrote about the experience of providing testimony before the Kansas House Committee on Judiciary about my family’s bill (as well as testimony against HB 2523, an apology bill). In this post I look at the testimony presented by other groups about these two bills.
No group supported our bill. I was not surprised by this, because there is something in it for everyone to dislike.
Kansas Hospital Association (KHA)
You can download the written testimony supporting HB 2523 and opposing HB 2376, by Deborah Stern, Vice President Clinical Services & General Council.
KHA states support for apology bill HB 2523 (bottom of page 1). They cite the “Sorry Works!” program as supporting state apology laws. This is not true. Not only has this organization said that state apology laws are not necessary, the founder has called them a distraction.
KHA states opposition for our disclosure bill HB 2376 (top of page 2), saying “The proposed legislation would inhibit the communication that occurs in health care facilities and replaces it with prescriptive, punitive checklist that mandates each step of the disclosure process.” From my perspective, the elements of disclosure absolutely do need to be clarified, or else the needs of patients will not be met (see the attachment to my written testimony on HB 2376 for summaries of research on lack of disclosure). I have received no suggestions from KHA on what they view as appropriate content for a disclosure conversation.
KHA then writes, “The proposed legislation as written does not apply to all health providers; only to those who are licensed to practice the healing arts.” I am not sure if that is simply a statement (which is true), or an objection. We choose the segment of professionals licensed by the Kansas State Board of Healing Arts, partly because we felt the reach of the bill needed to be slightly broader than just MDs and ODs, and partly because it provided a convenient definition. I do wish that there was better clarification of the role of nurses in disclosure, but that will take input from others. Our intention was to keep this reasonably narrow, and expand it if others feel it is needed.
One other point KHA brings up is that, “…all medical disclosures to a patient or patient’s family would be required to be recorded in the patient’s medical record. It is also our opinion that the medical record is a document which outlines the treatment provided to a patient and should not be the repository for disclosure information.” I think it is very appropriate to make a note in the medical record that a disclosure conversation took place, and perhaps include a summary of what information was discussed and who was present. Telling patients what has happened to their bodies should be a standard part of their care, and so I think this should go in the medical record. And having that information in the record might be very important for other healthcare providers, because they might need to remind a patient of that conversation when discussing care with the patient in the future.
Kansas Medical Society (KMS)
In reference to apology bill HB 2523 KMS says, “Although we do not feel this legislation is absolutely necessary, we can support it in this form.”
In reference to disclosure bill HB 2376, KMS says (third paragraph), “While well intended, the main part of the bill which deals with mandatory disclosure or adverse events, and mandatory meetings and discussions with patients, is overly regulatory and unnecessarily complex.” Yes, this is complex. But the complexity comes from attempting to address problems in the apology and disclosure laws of other states. Much of this bill is an attempt to follow the recommendations of Mastroianni et al. The gap between what patients expect to be told and what they are actually told (if anything) is large, and so this bill is quite specific about the content of disclosure conversations.
KMS also says (first full paragraph, second page), “It may be very difficult to readily ascertain who, if anyone, is responsible for an adverse event, unanticipated event of medical error, particularly in emergencies, care involving traumatic injuries, or patients with very complex medical conditions.“ I absolutely agree. And that is why nothing in this bill requires anyone to determine if there has been an error or if anyone is responsible for an event before talking to the patient. This bill simply says that when something goes wrong in a patient’s care, when treatment may have harmed instead of helped, that patient is to be told about it. And because not everything about an event may be known during the first conversation, further conversations may be needed to ensure that the patient is informed.
Another point KMS makes is that (second full paragraph, second page), “This bill also mandates that providers and patients have the required disclosures and discussions, whether the patient desires them or not.” I agree that needs to be addressed. I believe I have seen reported in a study (that I cannot find at this moment) that a very small percentage (less than five percent) of patients do not want to know about errors in their care. There needs to be a provision for those situations.
And further in the same paragraph, “This bill also requires the mandated disclosure of unanticipated outcomes or medical errors in the case of past patients who suspect they were the victim of an unanticipated outcome or medical error, but were not informed of such event. This provision is so broad, without limits, and impractical, as to render it impossible to comply with in many cases.” Yes, I realize this. But that statement is in there for my family, as well as the other families who have confronted the Wall of Silence. We want to remind people in the healthcare system that the hurt of families does not stop when the Wall is erected. And it doesn’t stop after a few months or a year. It lasts for a lifetime.
There are also some concerns about the apology protections (end of second page). As I testified, my family’s intent is to require disclosure. We included these apology protections because we realize this bill has no chance without them. But we fully support removing that section, or substituting HB 2523 in its place.
Kansas Association of Osteopathic Medicine (KAOM)
KAOM explains their support of apology bill HB 2523 by saying that “…health care providers have been advised, and in some cases prohibited, from communicating or expressing any type of condolence to families for fear it will be used against them in a legal proceeding.” From what I understand, this is true. However, this argument implies that an apology law will result in apologies. And of course, part of an apology is disclosure of what happened. As I argue in my testimony against HB 2523, there are many reasons that disclosure conversations do not happen (such as lack of training), and apology laws do not address these reasons.
KAOM only briefly addresses disclosure bill HB 2376, saying it “…goes above and beyond the intent of allowing a health care provider to apologize without fear his/her apology will be used against him/her in a court of law.” Actually, the intent is to require disclosure. I wish I could have cleared up that misunderstanding earlier.
Kansas Association for Justice (KAJ)
You can download the written testimony opposing HB 2523 and opposing section 4 of HB 2376, by Callie Denton, Executive Director.
I remember from oral testimony that the main reason that KAJ opposes both bills is that they exclude statements of fault from evidence in court. The written testimony goes into more depth about problems with these apology protections. For example, it creates a special class of professionals (physicians) who benefit from different rules of evidence in court. Also, healthcare providers are allowed to use apology and disclosure statements in court in their own defense, but patients cannot use these same statements as evidence in court. As I commented above, my family’s interest is not in the apology protections of this bill, but rather in the disclosure part. We agree this part may need to be altered (or removed). What we wrote was based on HB 2069 and substitute HB 2069 from 2011 (as recommended to us) and the work of Mastroianni et al., which is based on the premise that physicians are likely to restrict the content of disclosure communications to what is protected from use as evidence of fault in court.
Kansas Bar Association (KBA)
You can download the written testimony in support of HB 2523 if their revision to the bill is made, by Whitney Damron.
KBA is willing to support apology bill HB 2523 if it is revised to remove protections for statements of fault. They did not testify on disclosure bill HB 2376.
In comments for both HB 2523 and HB 2376, AARP says they “do not support malpractice reform proposals that do not reduce errors or that would impair the right of injured patients to full and just compensation for injuries resulting from inappropriate medical care.” I cannot speak for the authors of HB 2523, but I can say that HB 2376 is not intended to be malpractice reform. It is about ensuring that patients know what has happened in their care in the event of unanticipated outcomes or harmful errors. As I commented above, my family has no objections to rewording or removing section 4 which provides apology protections.
Kansas Advocates for Better Care (KABC)
You can download the written testimony opposing HB 2523 and opposing HB 2376, by Mitzi E. McFatrich, Executive Director.
In reference to both HB 2523 and HB 2376, “KABC opposes any legislation that: shields gross negligence and intentional wrongful acts, permits concealment of relevant and truthful evidence, or limits the accountability of the wrong-doer.” I believe this is an interpretation of the apology protections in section 4 of our bill.
KABC also states “Our opposition is heightened with the recent House passage of HB 2516 which redefines adult care facilities as ‘health case providers.’ Nursing and assisted facilities would be shielded from liability in the protections afforded by HB 2376.” Our bill defines health care providers as those professionals licensed by the Kansas Board of Healing Arts, so I don’t think that definitions in other bills would affect this one. But, I will let you know that we did consider extending the reach of this bill to nursing homes. We decided against that because the idea of mandatory disclosure already has a tremendous number of hurdles to overcome, and increasing the scope would only enhance the criticism that this bill is too complex and extensive. But we are certainly not opposed to extending disclosure requirements to nursing homes.