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Touting a third path to resolving malpractice cases

Proponents of caps on malpractice damage awards argue that they effectively control the cost of malpractice premiums in California and Texas, but the evidence of positive effects toward increasing patient safety or decreasing defensive medicine practices remains murky.

Others push for special health courts where healthcare experts could provide unbiased analysis that leads to fair and equitable rulings and place meritless, junk lawsuits on the ash heap of history.

Despite whatever merits they might have, health courts remain an academic and untested concept, and caps have become absorbed by the forces of the political yelling machines that see their passage or defeat as keys to maintaining freedom in our time.

A third option has entered the stage that is quietly gathering evidence of its efficacy: Disclosure, Apology and Offer, which calls for disclosing when adverse events occur, investigating why they happened, sharing that information with patients and their families and then offering compensation.

A coalition of Boston-area organizations is launching an initiative to test the concept, and it is basing its “Roadmap to Reform” on a similar program in place since 2004 at the University of Michigan Health System. The University of Illinois Hospital & Health Science System in Chicago has been doing the same since 2006.

"The real tort system should be reserved for situations where you just can't agree on the facts or the interpretation of the facts," says Dr. Timothy McDonald, a physician and faculty member with University of Illinois at Chicago. "When you look at cases where we know the care was substandard, we shouldn't need a court to tell us."

He adds that UIC hasn't had a case go past a year, which is in stark contrast to the typical five to seven years it usually takes to get resolution in the Cook County, Ill. court system.

"There's a financial efficiency that is substantial," says McDonald, who is also an attorney. "The time savings is also a mental health savings, because it's not good for anyone's mental health to stay in litigation for all those years.”

McDonald says the program has program has prompted a "substantial reduction" in malpractice claims and premiums, and that the open investigation of errors and adverse events has led to fewer incidents of patient harm. He adds that a healthcare economist is just beginning to look at the impact that disclosure, apology and offer has had on defensive medicine.

Though it's early, McDonald says preliminary analysis shows a reduction in laboratory tests that "fall into that defensive-medicine bucket."

But at least one barrier remains to physicians discarding the "Don't say anything to anybody," deny-and-defend response to adverse events, McDonald says. That is: Doctors don't want to have their names associated with an adverse event in state medical board proceedings or to be the sole individual named in a mishap that was clearly a system failure.

"You cannot overestimate those fears," he says.

Follow Andis Robeznieks on Twitter: @MHARobeznieks.

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