Lowering Costs of Medical Malpractice Claims Through Transparency and Accountability
Hospitals and physicians have increasing obligations to report adverse events, either to patients or to accreditation bodies. The American Medical Association’s Code of Medical Ethics provides that where a patient suffers “medical complications that may have resulted from a physician’s mistake or judgment…. a physician is ethically required to inform the patient of all facts necessary to ensure understanding of what has occurred…” The Joint Commission’s Standards require disclosure to patients or their families of any “unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof.” Although disclosure raises legitimate concerns regarding increased malpractice claims, when put into practice, full disclosure has been documented as actually reducing liability costs.
University of Michigan Health System’s Strategy
Starting in 2001, the University of Michigan Health System adopted a process of full disclosure to patients of medical errors. The key elements of its new system are:
- Identify claims: The University instituted programs for its clinicians to identify claims internally and to utilize Michigan’s pre-suit notice period for medical malpractice claims.
- Formal Investigation: Once a claim is identified, the University conducts a formal investigation during which patients are kept informed of the process and findings.
- Committee Review: A multidisciplinary committee reviews each claim and determines whether an error occurred and whether quality improvements could prevent future similar adverse events. Committee discussions are not disclosed to patients. Note that in Michigan, as in Mississippi, committee discussions are protected from the legal discovery process.
- Disclosure to Patients: The patient (and his or her attorney) is invited to meet with their caregivers for non-adversarial discussions regarding the incident. Where appropriate, an apology is offered.
- Case Resolution: When the University identifies an error, it attempts to resolve the dispute, often avoiding litigation altogether. If the care was medically reasonable, the University still vigorously defends those claims.
- Data Collection: Information regarding errors is gathered in this process and shared throughout the University health system.
- Quality Improvement: Wherever possible, that data is used to institute quality improvement initiatives.
The University memorialized positive results from its disclosure strategy. The number of malpractice lawsuits decreased although error reporting increased dramatically, the University’s legal expense decreased by approximately one half, legal expenses per indemnity dollar dropped sharply, reserves were cut by two-thirds, and cases were resolved on average in 9.5 rather than 20.7 months.
Under Michigan law, as in Mississippi’s statutes, a would-be medical malpractice plaintiff must provide a medical provider notice of his or her claim prior to filing suit. Instead of filing this notice away and awaiting the lawsuit, the University uses this period to investigate and often to settle claims. The University promotes further tort reforms that facilitate conversation rather than litigation, and allows hospitals and doctors to be transparent without risking financial ruin. The greatest concern hospitals and doctors have with disclosing errors is that statements made in the disclosure process could later be used in court as an admission against the hospital or doctor.
In addition, disclosures might be used in court not only as some sort of admission of liability, but also as evidence of the standard of care, that is, how a qualified practitioner would have managed the patient’s care under the same or similar circumstances. Ordinarily, a plaintiff’s attorney would be required to hire an expert witness to establish the standard of care, or face dismissal of the case. Thus, one potential reform that could facilitate early engagement by healthcare providers would be a measure that prevents such statements from being used in court.
As of 2010, thirty-five states – not including Mississippi – had passed some form of “I’m sorry statute.” Such statutes protect expressions of sympathy for an injured person from being admitted into evidence at trial to prove liability. Some statutes go further, however, and also prevent statements setting out the sequence of events and providing an explanation of what occurred from being used in court. Although Michigan has now adopted an “I’m sorry statute,” the University of Michigan instituted its disclosure policy well prior to its adoption, and received significant improvements without the benefit of having one. Nevertheless, other providers in other states may be unwilling to take the risk without further protection. Most tort reforms are criticized by plaintiffs’ attorneys as going too far to protect hospitals and doctors at the expense of patients. Reforms aimed at opening up communications between provider and patient, without placing additional barriers to the courtroom, may be more palatable to everyone.
Commenting on the University of Michigan’s success with its program, Dr. Paul Schyve, Senior Vice President at the The Joint Commission, noted: “A key ingredient of developing a culture of safety is maintaining a sense of trust among the staff within the health care organization and between health care professionals and patients and their families.” The process of reporting errors, disclosing them to patients, investigating, and possibly acknowledging and apologizing for errors not only builds trust with patients, but also within the hospital staff. It does not treat medical errors as taboo subject matter, and focuses instead on improving quality.”
Although a university system such as the University of Michigan may have fewer barriers to the implementation of such a system than other hospitals, it experience nevertheless demonstrates that disclosure and apologies can work in the real world to reduce costs defending medical malpractice claims. Mississippi might be well served to consider the University of Michigan’s strategy and its results.
Donald Alan Windham Jr. is an associate at Balch & Bingham, LLP, Jackson, Mississippi. He can be reached at firstname.lastname@example.org.