Providers to Test Power of Apology in Malpractice Claims

April 27, 2012

April 27, 2012 — The Massachusetts Medical Society (MMS) wants to prove that clinicians and hospitals can keep medical malpractice out of the courtroom by owning up to their mistakes with apologies — and sometimes cash as well.

The result, says the MMS, will be not only fewer lawsuits but also improved patient safety, less defensive medicine, and lower costs.

Earlier this month, the MMS and 5 other state healthcare organizations announced the start of a pilot program to promote a process called Disclosure, Apology, and Offer, or DA&O. It's a kinder and gentler approach to medical liability reform compared with measures such as caps on noneconomic (pain and suffering) and punitive damages, which are viewed in some quarters as abridging the legal rights of patients.

Like most of organized medicine, MMS supports these traditional liability reforms, but it also sees merit in avoiding the courts.

"The current liability system impedes open communication," says Alan Woodward, MD, a past MMS president and chair of its professional liability committee. "It creates a culture of blame, finger-pointing, and secrecy. We're trying to turn that around into an advocacy system that supports both patients and providers."

MMS is spearheading the initiative, which also includes Beth Israel Deaconess Medical Center; Baystate Health, the biggest healthcare system in the western part of the state; the Massachusetts Coalition for the Prevention of Medical Errors; the Massachusetts Hospital Association; and Medically Induced Trauma Support Services. The DA&O process will be piloted at 7 state hospitals: Massachusetts General Hospital, Beth Israel Deaconess and 2 affiliated institutions, and 3 hospitals in the Baystate Health system.

The Tao of DA&O

In the Massachusetts pilot project, participating hospitals would inform patients about adverse events as soon as they become aware of them and begin conducting a root-cause analysis. At the end of this assessment, hospital officials and pertinent clinicians would meet with the patient — and his or her attorney, if preferred — to disclose what they have learned.

"If it was an unavoidable injury, perhaps due to the patient's underlying medical conditions, you say you're sorry," said Dr. Woodward. "That's a statement of regret.

"If it was an avoidable injury, you apologize. It's best delivered by the provider."

In addition to the apology, patients with avoidable injuries would receive an offer of compensation for any damages they suffered, such as medical bills, lost income, or pain and suffering. The hospital would make good on system failures, such as a mismatched blood transfusion. If the mishap was caused by a physician's substandard care, however, the payment would come from his or her malpractice insurer.

Patients would retain the right to turn down the offer and ask a court of law for justice, noted Dr. Woodward. "We're trying not to compromise patients' legal rights." At the same time, providers would defend themselves against malpractice suits when they have met the standard of care.

The hope is, however, that an apology will head off a lawsuit. Experts say that patients frequently become plaintiffs simply because they are angry at clinicians who clam up — often on the orders of a malpractice insurer — after committing a medical error, seemingly devoid of sympathy. An apology gives the patient the satisfaction of knowing that somebody cares, and allows the clinician to be a human being with feelings.

"It's therapeutic on both sides," said Dr. Woodward.

The sharing does not stop there. In the DA&O pilot, an apology will be accompanied by an explanation of what the hospital intends to do to prevent future mishaps. This puts the emphasis on patient safety rather than legal victory.

The Massachusetts healthcare organizations hope to repeat the success of other experiments in DA&O. A study published in the Annals of Internal Medicine in 2010, for example, showed that this approach dramatically reduced the rate of malpractice litigation and total liability costs for the University of Michigan Health System.

Dr. Woodward also credits DA&O with saving money by reducing the volume of unnecessary tests and treatments that characterize defensive medicine. "If you eliminate the fear of spending 5.5 years in court, which is the average in a malpractice case in Massachusetts, you'll reduce the incentive to practice medicine," he said.

Fears That Apologies Will Boomerang

Dr. Woodward acknowledges that many physicians are reluctant to apologize for a medical error for fear they will open themselves up to a malpractice suit.

One way to lessen the fear factor is barring patients from using apologies against a physician in court. Such a law exists in roughly 30 states, and MMS supports efforts to add Massachusetts to the list.

Last year, Massachusetts Governor Deval Patrick introduced healthcare reform legislation that makes apologies inadmissible in a malpractice suit. The bill contained 2 other provisions that Dr. Woodward said would make it easier for DA&O to work in his state. One is a 180-day cooling-off period before a patient can file a suit after learning of an adverse event. Dr. Woodward said this would give healthcare providers time to sleuth out the cause of the mishap. The second provision enables aggrieved patients and providers to freely communicate and share medical records during the cooling-off period.

Another impediment to clinicians apologizing — and voluntarily paying — for medical errors is the fear that they will be reported to their state medical board and the National Practitioner Data Bank (NPDB), and suffer the consequences of a stained reputation. Again, there is movement afoot to remove this obstacle. A pro-disclosure group called Sorry Works! based in Glen Carbon, Illinois, is campaigning to change state and federal laws so that clinicians who go the DA&O route are not punished. It proposes to assign paid claims on behalf of such physicians to a separate "disclosure category" of the NPDB that would not be seen by hospitals and insurers as long as the physician accumulates no more than 2 paid DA&O claims in a rolling 10-year period.

Likewise, this kind of paid claim should not subject physicians to disciplinary action by a state medical board unless reckless behavior was involved, according to Sorry Works! But in that case, state boards could consider lighter sanctions for physicians choosing DA&O.

MMS and its partners seek similar reforms, said Dr. Woodward. When a mishap stems from a system failure in a hospital rather than an individual physician's care, it ought to be possible to report it as such to the Massachusetts medical board and the NPDB, he said. "Don't unfairly penalize the physician."

There also remains the challenge of getting medical malpractice insurers to support DA&O — and cooperate with each other in the process. A problem could arise when a patient deserves to be compensated for a medical injury, and the responsible parties include several physicians (each covered by a different malpractice insurer) and a hospital that essentially insures itself through a "captive" subsidiary. Dr. Woodward said the payment-making parties would need to develop policies in advance on how to divvy up liability, lest disagreements bog down the DA&O process.

"You don't want to be sitting there with the insurers haggling…''I'm going to pay $100,000, you ought to pay $175,000,' " he said. So far, the captive insurers for the 7 hospitals in the pilot projects as well as the state's largest commercial malpractice carrier are on board.

As they seek a new regulatory and insurance framework for medical liability, the proponents of DA&O in Massachusetts intend to develop model guidelines and educate hospital officials and physicians on the power of apology, even to the extent of conducting CME courses with role-playing exercises.

"Physicians are uncomfortable with this type of communication," said Dr. Woodward. "For so long, they've been told that you can't talk, you can't apologize. So it's a new skill set."

Doug Wojcieszak, the founder of Sorry Works!, applauds the ambitious nature of the Massachusetts experiment.

"Most of what we see in the way of apology programs are in individual hospitals or insurance companies," said Wojcieszak. "What's different in Massachusetts is that they're making it a statewide effort."

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