(1) In any action described in subsection (6) of this section, all parties to the action and their attorneys must participate in some form of dispute resolution within 270 days after the action is filed unless:

(a) The action is settled or otherwise resolved within 270 days after the action is filed; or

(b) All parties to the action agree in writing to waive dispute resolution under this section.

(2) Dispute resolution under this section may consist of arbitration, mediation or a judicial settlement conference.

(3) Within 270 days after filing an action described in subsection (6) of this section, the parties or their attorneys must file a certificate indicating that the parties and attorneys have complied with the requirements of this section.

(4) The court may impose appropriate sanctions against any party or attorney who:

(a) Fails to attend an arbitration hearing, mediation session or judicial settlement conference conducted for the purposes of the requirements of this section;

(b) Fails to act in good faith in any arbitration, mediation or judicial settlement conference conducted for the purposes of the requirements of this section;

(c) Fails to timely submit any documents required for an arbitration, mediation or judicial settlement conference conducted for the purposes of the requirements of this section; or

(d) Fails to have a person with authority to approve a resolution of the action available at the time of any arbitration hearing, mediation session or judicial settlement conference conducted for the purposes of the requirements of this section, unless the party or attorney receives from the court, before the hearing, session or conference commences, an exemption from the requirements of this paragraph.

(5) This section does not apply to parties to an action described in subsection (6) of this section that have participated in a discussion and mediation under sections 3 and 5, chapter 5, Oregon Laws 2013.

(6) The provisions of this section apply to any action in which a claim for damages is made against a health practitioner, as described in ORS 31.740, or against a health care facility, as defined in ORS 442.015, based on negligence, unauthorized rendering of health care or product liability under ORS 30.900 to 30.920. [2003 c.598 §54; 2013 c.5 §13]

Note: The amendments to 31.250 by section 14, chapter 5, Oregon Laws 2013, become operative December 31, 2023. See section 22, chapter 5, Oregon Laws 2013. The text that is operative on and after December 31, 2023, is set forth for the user’s convenience. (1) In any action described in subsection (5) of this section, all parties to the action and their attorneys must participate in some form of dispute resolution within 270 days after the action is filed unless:

(a) The action is settled or otherwise resolved within 270 days after the action is filed; or

(b) All parties to the action agree in writing to waive dispute resolution under this section.

(2) Dispute resolution under this section may consist of arbitration, mediation or a judicial settlement conference.

(3) Within 270 days after filing an action described in subsection (5) of this section, the parties or their attorneys must file a certificate indicating that the parties and attorneys have complied with the requirements of this section.

(4) The court may impose appropriate sanctions against any party or attorney who:

(a) Fails to attend an arbitration hearing, mediation session or judicial settlement conference conducted for the purposes of the requirements of this section;

(b) Fails to act in good faith in any arbitration, mediation or judicial settlement conference conducted for the purposes of the requirements of this section;

(c) Fails to timely submit any documents required for an arbitration, mediation or judicial settlement conference conducted for the purposes of the requirements of this section; or

(d) Fails to have a person with authority to approve a resolution of the action available at the time of any arbitration hearing, mediation session or judicial settlement conference conducted for the purposes of the requirements of this section, unless the party or attorney receives from the court, before the hearing, session or conference commences, an exemption from the requirements of this paragraph.

(5) The provisions of this section apply to any action in which a claim for damages is made against a health practitioner, as described in ORS 31.740, or against a health care facility, as defined in ORS 442.015, based on negligence, unauthorized rendering of health care or product liability under ORS 30.900 to 30.920.

Note: Sections 1 to 10, 17 and 23, chapter 5, Oregon Laws 2013, provide:

Sec. 1. Definitions. As used in sections 1 to 10 of this 2013 Act:

(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) "Health care facility" has the meaning given that term in ORS 442.015.

(3) "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;

(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.

(4) "Patient" means the patient or, 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 sections 1 to 10 of this 2013 Act, the patient’s representative as provided in section 8 of this 2013 Act. [2013 c.5 §1]

Sec. 2. Notice of adverse health care incident. (1)(a) When an adverse health care incident occurs in a health care facility or a location operated by a health care facility, the health care facility may file a notice of adverse health care incident with the Oregon Patient Safety Commission in the form and manner provided by the commission by rule.

(b) If a health care facility files a notice of adverse health care incident under this subsection, the health care facility shall provide a copy of the notice to the patient.

(c) A notice filed under this subsection may not include the name of a health care provider, but the health care facility filing the notice shall notify any health care providers involved in the adverse health care incident of the notice.

(2)(a) When an adverse health care incident occurs outside of a health care facility or a location operated by a health care facility, the health care provider treating the patient or the employer of the health care provider may file a notice of adverse health care incident with the commission in the form and manner provided by the commission by rule.

(b) If a health care provider or employer files a notice of adverse health care incident under this subsection, the health care provider or employer shall provide a copy of the notice to the patient.

(c) If an employer files the notice under this subsection, the notice may not include the name of the health care provider, but the employer shall notify each health care provider involved in the adverse health care incident of the notice.

(3) A patient may file a notice of adverse health care incident with the commission in the form and manner provided by the commission by rule. When the commission receives a notice of adverse health care incident from a patient under this subsection, the commission shall notify all health care facilities and health care providers named in the notice within seven days after receiving the notice.

(4) A notice of adverse health care incident filed under this section is not:

(a) A written claim or demand for payment.

(b) A claim for purposes of ORS 742.400.

(5) The filing of a notice of adverse health care incident as provided in this section satisfies the notice requirements of ORS 30.275.

(6) An adult in custody as defined in ORS 30.642 may not file a notice of adverse health care incident under this section. [2013 c.5 §2; 2019 c.213 §116]

Sec. 3. Discussion of adverse health care incident. (1) A health care facility or health care provider who files or is named in a notice of adverse health care incident filed under section 2 of this 2013 Act and the patient involved in the incident may engage in a discussion regarding the incident within the time established by the Oregon Patient Safety Commission by rule.

(2) The health care facility or health care provider who files or is named in the notice shall notify the patient and all health care facilities and health care providers involved in the adverse health care incident of the date, time and location of the discussion and shall reasonably accommodate all persons that wish to attend.

(3) The patient and the health care facility or health care provider who files or is named in the notice may include other persons in the discussion.

(4) Within the time established by the commission by rule, the health care facility or health care provider who files or is named in the notice may:

(a) Communicate to the patient the steps the health care facility or health care provider will take to prevent future occurrences of the adverse health care incident; and

(b)(A) Determine that no offer of compensation for the adverse health care incident is warranted and communicate that determination to the patient orally or in writing; or

(B) Determine that an offer of compensation for the adverse health care incident is warranted and extend that offer in writing to the patient.

(5) If a health care facility or health care provider makes an offer of compensation under subsection (4) of this section, the facility or provider shall advise the patient of the patient’s right to seek legal advice before accepting the offer.

(6) Except for offers of compensation extended under subsection (4) of this section, discussions between the health care facility or health care provider and the patient about the amount of compensation offered under subsection (4) of this section must remain oral.

(7) The health care facility or health care provider and the patient may agree to extend the time limit established by rule of the commission under this section, but a time limit may not be extended to more than 180 days after the notice of adverse health care incident is filed under section 2 of this 2013 Act unless the health care facility or health care provider and the patient also agree to extend the statute of limitations applicable to a negligence claim.

(8) If the patient accepts an offer of compensation made under subsection (4) of this section, the health care facility or health care provider who made the offer shall notify the commission.

(9) The commission shall request a report indicating the status of the matter from the person that filed the notice of adverse health care incident under section 2 of this 2013 Act within 180 days after the date 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. [2013 c.5 §3]

Sec. 4. Discussion communications. (1) As used in this section, "discussion communication" means:

(a) All communications, written and oral, that are made in the course of a discussion under section 3 of this 2013 Act; 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 section 3 of this 2013 Act.

(2) Discussion communications and offers of compensation made under section 3 of this 2013 Act:

(a) Do not constitute an admission of liability.

(b) Are confidential and may not be disclosed.

(c) Except as provided in subsection (3) of this section, are not admissible as evidence in any subsequent adjudicatory proceeding and may not be disclosed by the parties in any subsequent adjudicatory proceeding.

(3)(a) A party may move the court or other decision maker to admit as evidence in a subsequent adjudicatory proceeding a discussion communication that contradicts a statement made during the subsequent adjudicatory proceeding. The court or other decision maker shall allow a discussion communication that contradicts a statement made at a subsequent adjudicatory proceeding into evidence only if the discussion communication is material to the claims presented in the subsequent adjudicatory proceeding.

(b) A party may not move to admit expressions of regret or apology that are inadmissible under ORS 677.082.

(4) Communications, memoranda, work products, documents and other materials, otherwise subject to discovery, that were not prepared specifically for use in a discussion under section 3 of this 2013 Act, are not confidential.

(5) Any communication, memorandum, work product or document that, before its use in a discussion under section 3 of this 2013 Act, was a public record as defined in ORS 192.410 [renumbered 192.311] remains subject to disclosure to the extent provided by ORS 192.410 to 192.505 [series became 192.311 to 192.478].

(6) The limitations on admissibility and disclosure in subsequent adjudicatory proceedings imposed by this section apply to any subsequent judicial proceeding, administrative proceeding or arbitration proceeding. The limitations on disclosure imposed by this section include disclosure during any discovery conducted as part of a subsequent adjudicatory proceeding, and a person that is prohibited from disclosing information under the provisions of this section may not be compelled to reveal confidential communications or agreements in any discovery conducted as part of a subsequent adjudicatory proceeding. [2013 c.5 §4]

Sec. 5. Mediation. (1) If a discussion under section 3 of this 2013 Act 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 filed under section 2 of this 2013 Act may enter into mediation.

(2) The Oregon Patient Safety Commission shall develop and maintain a panel of qualified individuals to serve as mediators. The parties, by mutual agreement, may choose any mediator from within or outside the panel.

(3) The parties shall bear the cost of mediation equally unless otherwise mutually agreed.

(4) 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.

(5) If a health care facility or health care provider makes an offer of compensation as part of a mediation under this section, the facility or provider shall advise the patient of the patient’s right to seek legal advice before accepting the offer.

(6) Mediation under this section is subject to ORS 36.210, 36.220, 36.222, 36.224, 36.226, 36.232, 36.234, 36.236 and 36.238. [2013 c.5 §5]

Sec. 6. Payment and resolution. (1) A payment made to a patient under section 3 of this 2013 Act or as a result of a mediation under section 5 of this 2013 Act is not a payment resulting from a written claim or demand for payment.

(2) A health care provider or health care facility may require the patient to execute all documents and obtain any necessary court approval to resolve an adverse health care incident. The parties shall negotiate the form of such documents or court approval as necessary. [2013 c.5 §6]

Sec. 7. Statute of limitations; evidence of offers and payments. (1) The provisions of sections 3 and 5 of this 2013 Act relating to discussion and mediation do not prevent a patient from bringing a civil action for negligence unless the patient signed a release of the claim.

(2) The statute of limitations applicable to a negligence claim is tolled for 180 days, or another period agreed upon by the patient and the health care facility or health care provider who files or is named in the notice of adverse health care incident filed under section 2 of this 2013 Act, from the date the notice is filed.

(3) If a civil action based on an adverse health care incident is commenced, the court shall inform the parties of the opportunity to participate in the notice, discussion and mediation process under sections 2, 3 and 5 of this 2013 Act.

(4) Except as provided in section 4 of this 2013 Act, evidence that a party participated or did not participate in the notice, discussion and mediation process under sections 2, 3 and 5 of this 2013 Act is inadmissible in any adjudicatory proceeding.

(5) Evidence of an offer of compensation, and the amount, payment or acceptance of any compensation, under section 3 or 5 of this 2013 Act is inadmissible in any adjudicatory proceeding. However, any judgment in favor of the patient must be reduced by the amount of any compensation paid under sections 3 and 5 of this 2013 Act. [2013 c.5 §7]

Sec. 8. Patient representatives. (1) A patient who 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 sections 1 to 10 of this 2013 Act may be represented for purposes of sections 1 to 10 of this 2013 Act by the first of the persons, in the following order of priority, who can be located upon reasonable effort by the health care facility or health care provider and who is willing to serve as the patient’s representative:

(a) A guardian of the patient who is authorized to make health care decisions for the patient.

(b) The spouse of the patient.

(c) A parent of the patient.

(d) A majority of the adult children of the patient who can be located.

(e) A majority of the adult siblings of the patient who can be located.

(f) An adult friend of the patient.

(g) A person, other than a health care provider who files or is named in a notice of adverse health care incident under section 2 of this 2013 Act, appointed by a hospital under ORS 127.760.

(2) The conservator of the patient appointed under ORS chapter 125 may serve as a patient’s representative with the patient’s representative designated under subsection (1) of this section if the conservator’s representation is necessary to consider an offer of compensation under section 3 or 5 of this 2013 Act. [2013 c.5 §8]

Sec. 9. Duties of Oregon Patient Safety Commission. (1) The Oregon Patient Safety Commission shall make rules establishing requirements and procedures as necessary to implement sections 1 to 10 of this 2013 Act, including, but not limited to:

(a) Procedures for filing a notice of adverse health care incident under section 2 of this 2013 Act and for conducting discussions and mediations under sections 3 and 5 of this 2013 Act.

(b) The form of the notice of adverse health care incident under section 2 of this 2013 Act.

(2) The commission shall use notices of adverse health care incidents filed under section 2 of this 2013 Act 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.

(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. [2013 c.5 §9]

Sec. 10. Use of information by Oregon Patient Safety Commission. (1) The Oregon Patient Safety Commission may disseminate information relating to a notice of adverse health care incident filed under section 2 of this 2013 Act to the public and to health care providers and health care facilities not involved in the adverse health care incident as necessary to meet the goals described in section 9 of this 2013 Act. Information disclosed under this subsection may not identify a health care facility, health care provider or patient involved in the adverse health care incident.

(2) The commission may not disclose any information provided pursuant to a discussion under section 3 of this 2013 Act to a regulatory agency or licensing board.

(3) The commission may use and disclose information provided pursuant to a discussion under section 3 of this 2013 Act 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 subsection 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.

(4) A regulatory agency, licensing board, health care facility, health insurer or credentialing entity may not ask the commission, a health care facility, a health care provider or other person whether a facility or provider has filed a notice of adverse health care incident or use the fact that a notice of adverse health care incident was filed as the basis of disciplinary, regulatory, licensure or credentialing action. This subsection does not prevent a person from using information, if the information is otherwise available, to engage in quality review of patient care or as the basis of imposing a restriction, limitation, loss or denial of privileges on a health care provider or other action against a health care provider based on a finding of medical incompetence, unprofessional conduct, physical incapacity or impairment. [2013 c.5 §10]

Sec. 17. Task Force on Resolution of Adverse Health Care Incidents. (1) The Task Force on Resolution of Adverse Health Care Incidents is established, consisting of 14 members appointed as follows:

(a) The President of the Senate shall appoint two members from among members of the Senate as follows:

(A) One member from the Democratic party.

(B) One member from the Republican party.

(b) The Speaker of the House of Representatives shall appoint two members from among members of the House of Representatives as follows:

(A) One member from the Democratic party.

(B) One member from the Republican party.

(c) The Governor shall appoint 10 members, including:

(A) At least three members who are physicians licensed under ORS chapter 677 and in active practice;

(B) At least three members who are trial lawyers;

(C) One member who is a representative of the hospital industry; and

(D) One member who is an advocate for patient safety.

(2) The task force shall:

(a) Evaluate the implementation and effects of sections 1 to 10 of this 2013 Act; and

(b) Before December 31 of each year, report to an appropriate committee or interim committee of the Legislative Assembly on the implementation and effects of sections 1 to 10 of this 2013 Act.

(3) The task force may recommend legislation to be introduced to improve the resolution of adverse health care incidents.

(4) A majority of the voting members of the task force constitutes a quorum for the transaction of business.

(5) Official action by the task force requires the approval of a majority of the voting members of the task force.

(6) The Governor shall select one member of the task force to serve as chairperson and another to serve as vice chairperson, for the terms and with the duties and powers necessary for the performance of the functions of such offices as the Governor determines.

(7) The term of a member of the task force is four years, but a member serves at the pleasure of the appointing authority. A member may be reappointed. Before the expiration of the term of a member, the appointing authority shall appoint a successor or reappoint the member. If there is a vacancy for any cause, the appointing authority shall make an appointment to become immediately effective.

(8) Members of the Legislative Assembly appointed to the task force are nonvoting members of the task force and may act in an advisory capacity only.

(9) The task force shall meet at times and places specified by the call of the chairperson or of a majority of the voting members of the task force.

(10) The task force may adopt rules necessary for the operation of the task force.

(11) The Oregon Patient Safety Commission shall provide staff support to the task force.

(12) Members of the task force who are not members of the Legislative Assembly are not entitled to compensation, but may be reimbursed for actual and necessary travel and other expenses incurred by them in the performance of their official duties in the manner and amounts provided for in ORS 292.495. Claims for expenses incurred in performing functions of the task force shall be paid out of funds appropriated to the commission for purposes of the task force.

(13) All agencies of state government, as defined in ORS 174.111, are directed to assist the task force in the performance of its duties and, to the extent permitted by laws relating to confidentiality, to furnish such information and advice as the members of the task force consider necessary to perform their duties. [2013 c.5 §17]

Sec. 23. Sections 1 to 10 of this 2013 Act and the amendments to ORS 30.278, 31.250 and 743.056 [renumbered 742.407] by sections 11, 13 and 15 of this 2013 Act apply only to adverse health care incidents that occur on or after the operative date specified in section 21 of this 2013 Act [July 1, 2014]. [2013 c.5 §23]

Note: Section 20, chapter 5, Oregon Laws 2013, provides:

Sec. 20. Sections 1 to 10 and 17 to 19 of this 2013 Act are repealed on December 31, 2023.

[2013 c.5 §20]