Li­a­bil­ity projects start tak­ing shape

Some AHRQ grant ideas mov­ing ahead

Modern Healthcare - - FRONT PAGE - An­dis Robeznieks

The Obama ad­min­is­tra­tion put $25 mil­lion on the ta­ble in Oc­to­ber 2009 to nur­ture bet­ter ways to ad­dress med­i­cal li­a­bil­ity, and House Repub­li­cans in early 2011 set about push­ing caps on dam­ages.

While the GOP’S tort re­form mea­sure ap­pears to have hit a road­block in the Se­nate af­ter the House passed it in March, some ideas funded by the grants dis­bursed through HHS’ Agency for Health­care Re­search and Qual­ity are mov­ing ahead.

A coali­tion of six Bos­ton-area health­care or­ga­ni­za­tions re­cently un­veiled a pro­gram aimed at im­prov­ing the state’s med­i­cal li­a­bil­ity sys­tem, a project seeded with a plan­ning grant of al­most $274,000 that Beth Is­rael Dea­coness Med­i­cal Cen­ter re­ceived from AHRQ.

“We want to of­fer pa­tients some­thing other than the court sys­tem,” said Dr. Alan Wood­ward, a for­mer emer­gency physi­cian and the past pres­i­dent of the Mas­sachusetts Med­i­cal So­ci­ety. “If you re­form the tort sys­tem, you still have a tort sys­tem and you’re not go­ing to do away with the fears that lead to de­fen­sive medicine.”

Wood­ward is chair­man of the MMS Com­mit­tee on Pro­fes­sional Li­a­bil­ity, and he’s is work­ing to im­ple­ment a “Roadmap to Re­form” with a coali­tion that also in­cludes Bos­ton’s Beth Is­rael Dea­coness, Springfield- based Baystate Health, the Mas­sachusetts Coali­tion for the Preven­tion of Med­i­cal Er­rors, the Mas­sachusetts Hospi­tal As­so­ci­a­tion, and Med­i­cally In­duced Trauma Sup­port Ser­vices, which is a sup­port group for those af­fected by ad­verse med­i­cal events—both pa­tients and clin­i­cians.

The plan is to in­sti­tute a pro­gram they call Dis­clo­sure, Apol­ogy and Of­fer, which—just as it sounds—con­sists of dis­clos­ing when ad­verse events oc­cur, in­ves­ti­gat­ing why they hap­pened, shar­ing that in­for­ma­tion with pa­tients and their fam­i­lies and then of­fer­ing fi­nan­cial com­pen­sa­tion and by­pass­ing the court sys­tem.

Ac­cord­ing to Wood­ward, mal­prac­tice cases in Mas­sachusetts take five and a half years to re­solve. Of the dol­lars physi­cians pay for li­a­bil­ity pre­mi­ums, he added, only 30% goes to pa­tients, with the rest cov­er­ing in­sur­ance com­pany over­head, at­tor­ney and ex­pert wit­ness fees and other court costs.

“We can do bet­ter,” Wood­ward said. “You don’t have to have du­el­ing ex­pert wit­nesses. You can do a root-cause anal­y­sis at rel­a­tively low cost and put the find­ings on the ta­ble.”

The project started with struc­tured in­ter­views with rep­re­sen­ta­tives from 27 or­ga­ni­za­tions or in­dus­try sec­tors with a stake in mal­prac­tice re­form, and Wood­ward said ev­ery­one agreed that dis­clo­sure, apol­ogy and of­fer was the best strat­egy to adopt.

“We were sur­prised by the una­nim­ity of opin­ion,” Wood­ward said. “But the over­all mes­sage was: This is the right thing to do. It’s what you would want done if you were a pa­tient or a fam­ily mem­ber of a pa­tient who was harmed.” He said the coali­tion also stud­ied a sim­i­lar pro­gram in place for 10 years now at the Univer­sity of Michi­gan Health Sys­tem where re­sults show it is work­ing as in­tended.

The grant Beth Is­rael Dea­coness re­ceived was part of a pack­age of seven demon­stra­tion grants and eight plan­ning grants to­tal­ing $23.2 mil­lion awarded in June 2010 and fi­nanced through a spe­cial con­gres­sional ap­pro­pri­a­tion, said AHRQ spokes­woman Karen Mig­dail, adding that an­other $50 mil­lion pack­age was au­tho­rized in the Pa­tient Pro­tec­tion and Af­ford­able Care Act, but the money has never been specif­i­cally ap­pro­pri­ated by Congress.

The Univer­sity of Illi­nois at Chicago re­ceived a demon­stra­tion grant for al­most $3 mil­lion to ex­pand its own dis­clo­sure, apol­ogy and of­fer pro­gram, known as Seven Pil­lars, to other area hos­pi­tals.

Dr. Ti­mothy Mcdon­ald, a physi­cian and at­tor­ney with the school and the Univer­sity of Illi­nois Hospi­tal & Health Sci­ence Sys­tem, said the pro­gram started with five and has now grown to in­clude 10 area hos­pi­tals— with some act­ing as a con­trol group.

“We re­ally want to do some good sci­ence here and mea­sure whether it’s our in­ter­ven­tion that made the dif­fer­ence or it would have hap­pened any­way,” Mcdon­ald said.

Ac­knowl­edg­ing that a large self-in­sured aca­demic med­i­cal cen­ter with em­ployed physi­cians may have ad­van­tages in adopt­ing such a pro­gram, Mcdon­ald notes that the other hos­pi­tals in the demon­stra­tion are pri­vate hos­pi­tals with open med­i­cal staffs.

Mcdon­ald said the Seven Pil­lars pro­gram has been in place since 2006 and has prompted a “sub­stan­tial re­duc­tion” in mal­prac­tice claims and pre­mi­ums. But, more im­por­tant, the open in­ves­ti­ga­tion of er­rors and ad­verse events has led to fewer in­ci­dents of pa­tient harm, he said.

These pro­grams are seen as al­ter­na­tives to other pro­posed tort re­forms such as caps on dam­ages or spe­cial health­care courts where cases are tried be­fore med­i­cal ex­perts in­stead of lay ju­ries. Both Wood­ward and Mcdon­ald said it would be a long time— if ever— be­fore ei­ther of those al­ter­na­tives was adopted by their states. “In our view, there was no point in hold­ing out for that,” Mcdon­ald said.

In the New York State Uni­fied Court Sys­tem, Judge Judy Kluger is lead­ing a “judge-di­rected ne­go­ti­a­tion” pro­gram that re­ceived an al­most $3 mil­lion grant from AHRQ.

“We’re re­ally in the be­gin­ning of this,” Kluger said, ex­plain­ing that the project is be­ing eval­u­ated by the Har­vard School of Public Health, which didn’t get the go ahead to do so from its in­sti­tu­tional re­view board un­til last Septem­ber.

Par­tic­i­pat­ing judges un­der­went a three-day train­ing ses­sion that in­cluded ed­u­ca­tion on med­i­cal le­gal is­sues and me­di­a­tion tech­niques. Kluger said the pro­gram is “not a health court.” Rather, the point is to of­fer an op­por­tu­nity to set­tle be­fore lit­i­ga­tion gets into full swing.

The ex­pec­ta­tion, Kluger said, is that plain­tiffs will get resti­tu­tion ear­lier and de­fen­dants will get “some­thing of a dis­count.” The process is de­signed to keep cases from get­ting bogged down, she said. “We make sure that there’s al­ways a fu­ture date set where some­thing has to hap­pen on a case—where it moves for­ward or gets re­solved.”

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