Legal View: Medical liability: It's time for a new approach

By Alan Woodward The Daily Record Newswire Physicians' criticisms about our medical liability system have long been loud and clear: it leads to frivolous lawsuits, undermines patient safety, reduces access to care, creates a "culture of silence" between physicians and patients, burdens doctors with high premiums and encourages defensive medicine, driving health costs higher. In short, doctors say, the system is dysfunctional and ill serves patients, physicians and our health care delivery system. Some attorneys argue that fairness for patients should be paramount, that the rights of those who have been harmed must be preserved in redressing treatment that doesn't meet accepted standards of care. Insurers urge caution and sometimes silence; patients who have been harmed get caught in years of litigation. Whatever one's perspective, most would agree that the current medical liability system gets low or failing grades, and has for some time. Six years ago, The Joint Commission, the independent nonprofit organization that sets standards and accredits health care organizations in the U.S., said: "There is in fact a fundamental dissonance between the medical liability system and the patient safety movement. The latter depends on the transparency of information on which to base improvement; the former drives such information underground. As a result, neither patients nor health care providers are well served by the current medical liability system." The good news is we can fix the system through a DA&O model -- disclosure, apology and offer. The DA&O model includes four elements that studies show are the priorities of patients experiencing harm: setting a "baseline culture of safety" to prevent the recurrence of adverse events; full disclosure of what happened and why; and for avoidable events, an apology and a fair and timely offer of compensation. Such a system will not deny patients the right to bring a legal action, but would make tort claims a last resort. Last July, the Massachusetts Medical Society and Beth Israel Deaconess Medical Center received a planning grant from the Agency for Healthcare Research and Quality -- part of the president's Patient Safety and Medical Liability Initiative -- to create a roadmap to advance a DA&O model in the Commonwealth. With BIDMC as lead investigator, representatives from all key stakeholder groups were interviewed, including physicians, attorneys, legislators, public officials, patient safety experts and patient advocates. They were asked to identify obstacles in implementing such a model, as well as appropriate strategies to overcome those obstacles. Their responses were encouraging and consistent with experience elsewhere. The University of Michigan Health System, for example, has proven the value of this approach. Within six years of establishing such a program in 2001, UMHS had reduced its annual claims from 262 to 73 and its open cases from 300 to 80. The average time to resolve cases dropped from 20 months to eight months, with transaction expenses cut from $48,000 to $20,000 per case. Court cases were reduced more than 90 percent, and incident reporting -- critical to improving patient safety -- multiplied. Surveys have demonstrated overwhelming satisfaction with the program. Attorney Rick Boothman, UMHS chief risk officer and the architect of this approach, is blunt about the need for change: "Medicine needs to reclaim ownership of its problems and the responsibility for fixing them. Failing to honestly confront medical mistakes that cause injury, or to explain honestly to patients why the injury is not the result of medical error, is why we have litigation. Refusing to change is why we can't fix the problem." The Joint Commission is also direct: "The axiom, 'you learn from your mistakes' is too little honored in health care." Change doesn't come easily, however, and stakeholders interviewed for our project identified several barriers to this new approach. Discomfort with disclosure and apology exists on the part of both physicians and hospitals. Small and rural hospitals may lack the resources to enact such programs. Attorneys on both sides may not believe a new model will benefit their clients. Insurers have concerns about potential negative economic impact and cases involving multiple defendants who are covered by more than one company. The current charitable immunity law in the state, limiting hospital liability to $20,000, may make physicians, seeing themselves as the "deep pocket" targets, reluctant to participate. Additional obstacles include the lack of "enabling legislation" to protect apologies from being used in lawsuits and provide for a mandatory pre-litigation period to complete the DA&O process and for sharing of pertinent medical records with all involved parties. These concerns are understandable but not insurmountable, and our research led us to conclude that the DA&O model holds wide appeal among stakeholders in Massachusetts. They believe it has potential to serve patients better, reduce legal costs and risks, improve the culture within hospitals and enhance patient safety. Significantly, the most often cited advantage was ethical and professional considerations: that it's simply the right thing to do. One goal of this approach is to reduce physicians' fear of being sued, which has been a consistent finding in local and national research examining the practice of defensive medicine. The Joint Commission has recognized this effect as well: "The stifling specter of litigation results in the under-reporting of adverse events by physicians and avoidance of open communications with patients about error. ... An unintended consequence of the tort system is that it inspires suppression of the very information necessary to build safer systems of health care delivery." It is time for a better way to serve patients and improve patient safety. We believe the status quo is unaffordable, unsustainable and undesirable, and we invite all stakeholders to join us in fixing a system long overdue for reform. ---------- Alan Woodward, M.D. is a past president of the Massachusetts Medical Society, Vice Chair of its Committee on Professional Liability, and the MMS representative in the BIDMC/MMS patient safety and medical liability initiative. Published: Fri, May 13, 2011