Medical Malpractice 101: Patient Needs to Be First, Last, and Everything In Between

Larry Smith, Vice President of Risk Management at MedStar Health, is a true pioneer – one of a small number of leaders in healthcare who have developed early communication and resolution programs when harm from medical error occurs. Programs like University of Michigan led by Rick Boothman and Susan Anderson, University of Illinois led by Tim McDonald and Nikki Centomani, and MedStar Health led by Larry Smith and Steve Evans have long moved from a “deny and defend” approach to medical errors to one of open and honest communication. These programs have been able to bring closure and healing to all parties involved while using the court system and the long, difficult battles that result where no really wins except maybe the attorneys as a last resort.

This week, Larry recruited not only his own team of insightful and skilled Risk Managers, but also plaintiff attorney, Paul Bekman, Esq., defense attorney, Michael Flynn, Esq., and the Honorable Howard Chasanow, former Maryland Supreme Court Justice and now a full-time mediator, to participate in MedStar Health’s Quality, Safety & Risk Management retreat. It may sound like an unlikely gathering of peers to many, but for Larry, the only way to move towards the “just culture” required of high reliability organizations is to continue to unite those whom often seem disunited.

As the panel of experts shared what really occurs in court rooms in the aftermath of a medical error, all attendees gained a deeper understanding of the complexities inherent to managing a healthcare system. At a time when patients and caregivers are caught up in the pain, uncertainty and fear related to what is often a life-changing event, the medical-legal piece can either remove, or compound, the emotional, physical and financial costs involved. One thing many of the attendees learned was that when a patient forfeits control, and ultimately a say in the final decision of such an intimate and painful event, to a jury of peers with what can be at times an attorney not well-versed or well-intended when it comes to medical-legal matters, additional problems can be created for all involved. Claims filed often cost health systems millions of dollars, and patients many times do not receive what they truly deserve when cases are handed over to the courts. Judge Chasanow was truly inspirational and shared that true healing for all can be found through skillful mediation led by those knowledgeable in the intricacies of medical harm events–especially when led by those who have the patient and family’s best interest as the top priority. He also shared the amazing healing power that can result from two words –“I’m sorry”. When offered in a sincere and meaningful manner, anger and tension seem to dissipate and true progress towards closure and healing through mediation can begin for all.

Moving forward, we have two options:

Or a second option. A few years ago, Transparent Health put together a short trailer for a longer piece of work that sums up another approach to managing medical errors and the harm that can come from them. When harm is managed openly, honestly and with transparency, healing can begin. Here is that short clip:

Healthcare remains at a crossroad. If we are to truly achieve a Culture of Safety and drive towards Zero Harm, we must embrace open and honest communication, practice just culture principles that balance systems and process breakdowns with reckless personal accountability, and follow the wise words of Carole Hemmelgarn who so eloquently said it should always be “Patient first, last and everything in between”.


Who Wins When Medical Malpractice Claims Are Filed?

Screen Shot 2013-10-28 at 6.43.08 AMThe Doctors Company (TDC) and their Foundation (TDCF) have been committed to medical education for many years. They have been the major supporter of our annual Telluride Patient Safety Summer Camps for medical and nursing students the past four years, providing full scholarships to sixty medical and nursing students last year so they could attend this week-long immersion in safety, quality and transparency.

I have been honored the past two years to be invited to attend TDC Annual Advisory Board Retreat. The retreats have become a favorite meeting of mine, as well as one of the best educational meetings I have attended. One of the presentations I enjoy hearing most is given by Dr. Richard Anderson, the CEO of TDC, who opens the meeting with an update and discussion on the current medical malpractice environment. Dr. Anderson shares claims data along with insightful narrative so that a “novice” to the medical malpractice industry like I am can understand and appreciate the challenges healthcare really faces today.

A couple of numbers he shared this year really hit me:

  1. The average cost of a claim at TDC is $97,000
  2. 82% of all claims filed do not result in any payment to the patient and/or family

A couple of things came to mind as I reflected on those two facts. First, where is all that money going? If the $97,000 isn’t going to patients or families, who was it going to? Who was getting all that money? The second thing was the pioneering work done by Rick Boothman, Susan Anderson, Skip Campbell and others at the University of Michigan highlighted in the article entitled Liability Claims and Costs Before and After Implementation of a Medical Error Disclosure Program. After full implementation of a disclosure-with-offer program at the University of Michigan, Boothman and colleagues observed:

  1. Decreases in the monthly rate of new claims from 7.03 per 100 000 patient encounters to 4.52
  2. Declines from 232 lawsuits (38.7 per year) to 106 (17.0 per year)
  3. Declines in median time to claim resolution from 1.36 years to 0.95 year

They also appreciated decreases in monthly costs associated with total liability, patient compensation, and non–compensation-related legal costs. Through an open, honest, timely and effective communication approach to unanticipated outcomes, they were able to successfully start addressing the excessive costs Dr. Anderson referred to associated with liability claims.

Maybe there is a better approach to the “deny and defend” model we have seen used through the years.

One additional figure Dr. Anderson shared also hit me hard this year. The number of claims filed asking for compensation above $10,000,000 has tripled over the last year, with the total claim pool going from $400,000,000 to $1,200,000,000 in total costs in just twelve months. Even gas prices haven’t risen that fast. Has the severity of patient harm suddenly tripled over the past year or are there other factors contributing to this sudden escalation?

If interested, The Doctor’s Company website contains numerous healthcare, patient safety and risk reduction resources. Click here for more information.


More “Skin in the Game” – Is This Where We Are Going?

The name of this blog, Educate the Young–and on occasion Regulate the Old, originated from the somewhat disheartening realization that education alone wasn’t going to create the complete adoption of cultural change–the collective mindfulness of high reliability organizations, and the personal commitment of every caregiver to do all the extra little things it takes to ensure our patients are as safe as possible. To be fully patient-centered, not self-centered. Unfortunately, regulations, carrots and sticks, and negative reinforcements may also appear to be necessary to create the behavior change needed to get us to zero preventable harm events. These rules can sometimes be painful and appear to oppose a just culture approach, but they have also been shown to work when other behavior change methods do not. While the debate over the value of extrinsic versus intrinsic motivators to change continues, so does the harm to our patients.

In Bob Wachter’s post this summer, The New and Improved “Understanding Patient Safety” and Evolution of the Safety Field, he states that the greatest change in his thinking over the past 5 years is the need to balance:

…a “no blame” approach (for the innocent slips and mistakes for which it is appropriate) with an accountability approach (including blame and penalties as needed) for caregivers who are habitually careless, disruptive, unmotivated, or fail to heed reasonable quality and safety rules. Fine-tuning this balance may well be the most challenging and important issue facing our field over the next 5-10 years.

And in November of this year, Peter Pronovost commented in his blog (here) on the leadership it will take, not only to turn Parkland Hospital around, but others as well:

…doctors, nurses and administrators care deeply about patients; they do not want to harm them. They work with broken, underresourced systems. The next CEO must recognize this and seek to understand rather than judge, to learn and improve rather than blame and shame…This won’t be easy. The public wants accountability. Parkland is under scrutiny from federal and state regulators. Yet real improvements will come from internal rather than external motivation…The CEO will need to help the staff see shortcomings in safety as their problem and believe they are capable of solving it. The CEO will need to inspire with lofty oratory, and then drop down, roll up her sleeves, and get things done.

Financial penalties based on safety and quality measures are now prevalent in healthcare. Value-based purchasing, quality care indicators, and readmissions are now tied to revenue deductions, and more measures tied to reimbursement are on the way. Will continuing to increase these type of quality-base incentives be what it finally takes to get us to where quality and safety should be? Or are there more severe penalties on the horizon for not following evidenced-based safe practices?

People are now speculating on what would happen if physicians had more “skin in the game” — a Warren Buffet-ism suggesting that people who feel the hurt financially when something goes wrong will take a more vested interest in the outcome of their efforts. This risk-taking behavior change is seen in business and other areas, including healthcare. In a recent post on his blog, A proposed exception to malpractice coverage, Paul Levy posed a “what if”:

…Any surgeon who has carried out a wrong-site surgery who did not follow the universal protocol for a time-out would not be covered for malpractice claims on that procedure.  Any anesthesiologist who was attending such a surgery likewise would not be covered for malpractice claims on that procedure…

There is possible history behind this proposal. Obtaining informed consent to do a procedure on one part of the body and then (after knowingly violating safe policies and procedures like universal protocol) “harming” another part of the body without gaining informed consent could be classified as battery and a criminal offense. Some in the legal community believe this approach could be used to negate malpractice coverage as wrong-sided surgeries and procedures continue to occur.

The response Paul received provided a good look into just how complex this behavior change is, and in a follow-up post, Let’s go for autonomy, mastery and purpose, he responded by sharing that in his experience, it takes a balance of attention to the needs of the systems in tandem with personal accountability, referring to Dan Pink, a motivation expert, author and TED Talk alumni that carrots and sticks detract from, rather than build up, a workforce.

So would more skin in the game, and a hit to one’s financial well-being (e.g. home, automobile and other personal assets), be what is necessary to help create the culture change we now need to put our patients first and show the last safety “hold-outs” that people are fed up with non-compliance to policies and procedures that have been shown to reduce risk?  I for one would like to believe this is not true–that the vast majority of us still embody our oath to do no harm first and foremost, and that financial or personal gain is not the driving force behind our efforts in healthcare. But I have also watched improvements in care occur at a much slower pace than hoped, and sometimes only after CMS required it–despite all educational energy and effort put into those improvements prior to the mandates. The conversation continues…


Managing Medical Malpractice Around the World Through Education

During our patient safety elective at the University of Illinois College of Medicine we also covered modules on Open, Honest Communication and Medical Malpractice. (The curriculum outline follows this post). I mention this topic, not only because a patient safety curriculum without education and discussion on the medical-legal relationship and the benefits of open, honest communication in healthcare would be incomplete, but because by offering this course through an online platform, it gave us the opportunity to open the curricula to students from all over the world. This is exactly what happened when we had a group of medical students from Australia take the patient safety elective with a group of UIC students. The discoveries, interactive discussions, and student learnings on disclosure and medical malpractice were fascinating from an instructor standpoint. The students shared different perspectives on open and honest communication after harm and the multiple barriers that caregivers face…but they did so based on their own national healthcare environment as well as what they had read from their research and what they had seen practiced during their clinical rotations. Through the entire week of discussions, I was reminded of some of the challenges our system here in the US holds…..

WEEK 3, MODULE 5: MEDICAL MALPRACTICE; CURRENT LEGAL CLIMATE (Days 1-2)

Upon successful completion of this module, students should be able to:

  1. Identify and list the elements that a plaintiff must prove in order to succeed in a traditional medical malpractice lawsuit, with a particular understanding of the ways in which negligence or “deviation from the standard of care” can be proven in a court of law.
  2. Understand and articulate the conflicts between the objectives of the approaches to patient safety and the underlying concepts and approaches to the current medical malpractice tort system.
  3. Identify the major benefits and barriers to the disclosure of medical error to patients.

Research Questions:

  1. Identify and analyze alternative patient compensation systems beyond the traditional American tort system and address the pros and cons of each of those systems.
  2. Identify the primary barriers to the disclosure of a medical error that has caused patient harm.
  3. Regardless of the specific methodology for the compensation of patients for harm caused by preventable medical error, propose a strategy for convincing the Board of Trustees of a major health care organization to pursue a policy of “full disclosure” for medical error.

WEEK 3, MODULE 6: OPEN AND HONEST COMMUNICATION IN HEALTHCARE (Days 3-4)

Upon successful completion of this module, students should be able to:

  1. Define informed consent, informed choice and shared decision-making.
  2. Describe key elements and important differences between patient communication methods regarding treatment choices.
  3. Understand why open and honest communication with patients is an ethical imperative while reducing risk for future liability.

Research Questions:

  1. Define Informed consent, informed choice and shared decision-making. Describe key elements and important differences between all three.
    • What methods and tools are available today that help support shared decision-making?
    • How can caregivers ensure patients are adequately educated on different treatment options as well as risks and benefits?