Alternative med-mal ap­proaches can re­duce le­gal costs

Alternative med-mal ap­proaches show prom­ise

Modern Healthcare - - FRONT PAGE - An­dis Robeznieks

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.”

‘Gain­ing mo­men­tum’

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 high­risk 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.

An ‘at­tack of con­science’

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 hap- pened, 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 pa­tientsafety 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.”

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