Author, designer and inventor R. Buckminster Fuller said change doesn't come from fighting the existing reality, but by building a new model that makes the existing one obsolete.
So as doctors and lawyers continue to fight about whether capping malpractice damages will solve runaway legal costs, others are showing how full disclosure on medical injuries and improving patient safety by learning how to prevent similar injuries in the future might be a more useful model for tort reform.
Preliminary data is starting to come in from an Agency for Healthcare Research and Quality-funded $3 million demonstration project in which the University of Illinois Medical Center at Chicago's “Seven Pillars” program has been expanded to 10 other hospitals. And it shows that the program's promotion of full disclosure of injuries and errors, apologizing and offering compensation appears to be having a positive effect on legal costs.
The program offers several early findings, says Dr. Timothy McDonald, a professor of anesthesiology and pediatrics at the University of Illinois at Chicago and the University of Illinois chief safety and risk officer for health affairs.
McDonald, who also is an attorney, says malpractice cases in Cook County, Ill., typically take up to five years to resolve. For UIC and the 10 grant hospitals, the time-to-settle period has been reduced by about 80%, he says.
He notes that expenses to defend a malpractice lawsuit—including attorney fees, expert witnesses and other court costs—can run between $300,000 and $350,000—even if it's settled before going to trial. For UIC and the grant hospitals, McDonald says those litigation costs have been reduced a minimum of 70%.
Also, when “care was unreasonable,” all hospital and professional fees are waived, McDonald says, meaning patients are not charged after receiving substandard care. In the first two years of the grant, UIC and the grant hospitals have waived almost $6 million—“a huge savings to the payers,” McDonald says.
“That does a lot for customer service,” McDonald adds, noting how corrective measures are taken and patients aren't as angry because “we're not sending them to collections.”
The seven elements are: reporting; investigation; communication; apology with resolution; process and performance improvement; data tracking; analysis, and education. The program started in 2005 and was fully implemented the following year. Since that time, McDonald says that “what could be described as charges associated with defensive medicine,” meaning laboratory and radiology tests, have been reduced by a minimum of 20%.
“This is gaining momentum,” McDonald says. “There has not been an increase in claims and lawsuits, which some people thought they'd see.”
McDonald says there are some barriers to nationwide implementation of disclosure-apology-offer programs, explaining how, in some circumstances, “the incentives for a doctor to be perfectly honest are not perfectly aligned.”
This includes public reporting methodologies where a physician might be named as the sole party responsible for an institution's systemic problems. The more the public wants to punish physicians involved with errors that are the result of systems issues, the more likely it is that some errors may get covered up, he says.
The AHRQ grant will run out at the end of June, McDonald says, adding that “we've been pretty frugal,” so he's hoping for an extension or funding from other sources to pay for more data analysis from the demo. In the meantime, he says UIC has received inquiries from hospitals in California, Colorado and Maryland about Seven Pillars.
Another program others are following is the Michigan Claims Management Model, which was started at the University of Michigan Health System in late 2001. One measurable impact the program has achieved is a reduction in the number of open malpractice claims, according to attorney Richard Boothman, a University of Michigan adjunct assistant professor and executive director of clinical safety for the system.
In 2001, the university system had 262 open claims. That number fell to 83 in 2007 and stands at 63, Boothman says.
Despite the clear increase in attention that disclose-apology-offer programs are receiving, Boothman cautions that looks can be deceiving.
“The frustrating thing is that what you will find is some people will say, 'We're already doing it,' but they don't define 'it,' ” Boothman says. “It's important to identify what the 'it' is. Despite the hundreds of headlines, it's not 'apologies save money.' ”
Boothman acknowledges the program “has favorable claim results, which is a good thing,” but that's almost “a happy coincidence” in the grand scheme of things. “The real thrust of what we're doing is that it really has to do with improving the quality of our medical care,” he says. “The most important disclosure is the one we first do to ourselves when we say, 'I could have and should have done better and I may have just hurt someone.' ”
He explains how humans are “hardwired with the fight-or-flight response” to danger or stress, noting healthcare's traditional “deny and defend” handling of malpractice suits is an extension of that. But he says that approach freezes patient-safety efforts and stifles the two best risk-management strategies: Don't injure anyone, and—if you do—don't do it again.
Most hospitals “fight everything—whether it deserves to be defended or not,” Boothman says. “Then they declare themselves victims of a broken system.”
Boothman adds, however, that it's UMHS policy to support its professionals and mount a defense when it is merited, even if business expediency says to settle. “Everything we do in healthcare is inherently risky, so—if their care was reasonable—they deserve our support,” Boothman says. “We will not settle a case if we know our care was reasonable.”
One of the foundations for disclosure-apology-offer programs is the research into why people sue their doctors conducted by Dr. Gerald Hickson and James Pichert at Vanderbilt University Medical Centers' Center for Patient and Professional Advocacy. “Families want answers,” Hickson says. “If something bad happens or something unexpected happens to your loved ones or yourself, you want to know why.”
The traditional stonewalling that occurs with the deny-and-defend response to a medical injury often triggers malpractice suits, Hickson's and Pichert's research found, because suing was the only way to get answers to their questions.
“You want an expression of human concern as an apology—not laying blame,” Hickson says. “You also want an explanation. How did this occur? What does it mean to me? How am I going to respond to this ongoing threat to my health?”
He says Vanderbilt has been offering these explanations since 1992, and “we have cut our litigation dramatically.”
Their research also showed malpractice claims “are not randomly distributed,” and they've learned to identify how individuals who “don't work well with others” draw more than their share of claims. After identifying the high-risk individuals, Hickson says they are instructed that they “must change in a profound way.”
“Some don't and don't continue to be a member of our team,” he says.
Full disclosure got its start at the University of Kentucky-affiliated Veteran Affairs Medical Center in Lexington where Dr. Steve Kraman was put in charge of risk management and patient safety in 1987. He recalls how an “attack of conscience” occurred after it was discovered weeks later that a woman who was in ill health had not died because of her condition but because of an accidental fatal overdose of medication.
“We could've closed the books, and chances were excellent nothing would ever happen,” says Kraman, now vice chairman of internal medicine at UK Healthcare at the University of Kentucky in Lexington. “We decided we didn't want to start putting skeletons in the closet.”
Kraman says he contacted the woman's two daughters, arranged a meeting and told them to bring an attorney. He explained what happened, told how a plan was in place to prevent it from happening again and made an offer similar to what could be expected in a trial. After some negotiation, the matter was settled “within several months.”
“We decided this worked so well, it would be our model from then on,” Kraman says. “But we weren't pushovers. We didn't give away money.”
Kraman and VA attorney Ginnie Hamm would eventually assemble data on malpractice claims between 1990 and 1997 that showed how the Lexington VA hospital's liability payments were moderate and comparable to similar facilities. Their research was published in the Dec. 21, 1999 edition of the Annals of Internal Medicine—just three months after the October release of the Institute of Medicine's groundbreaking patient-safety report To Err is Human.
McDonald notes how the VA study did not use the words “sorry” and “apology,” but focused on honesty and offering appropriate compensation. “It showed that, if you're extremely honest with patients, you won't see a financial Armageddon,” McDonald says. “It gave people courage.”