The New America Foundation’s Joann Kenen has posted an insightful piece on how some innovative medical centers deal with medical mistakes: Rather than stonewalling patients and relatives, they “Disclose. Apologize and Fix.”
I’ve written in the past about how “Sorry Works.” (You’ll find part 2 of the post here. )
But as Kenen points out, this is not just about apologizing. Or as she puts it, it’s not enough to say: “Something went wrong. We’re sorry. Here’s a check. Ciao.”
Moreover, she notes that “there are many obstacles to expanding this model. The best known examples [of places where full disclosure has proved successful are], like the University of Michigan or the Lexington VA center, staff models. The doctors are part of the hospital staff and everybody is covered by the same malpractice insurer. That’s not true in most hospitals, and there can be numerous doctors, numerous insurers, all with their own take on what happened and whether to disclose — or deny.”
Kenen reports that the Agency for Healthcare Research and Quality (AHRQ) is reviewing grant proposals from health systems around the country that are interested in exploring ways to overcome the obstacles.
If more hospitals could pursue this approach, it would help rein in health care spending. The cost of malpractice insurance and paying hospital counsel to defend suits is hidden in our hospital bills. Settlements are cheaper than suits, because a hospital avoids the costs of a drawn-out legal battle. Rather than paying lawyers to go through the endless process of legal “discovery,” the hospital, doctors and nurses explain what actually happened. Less is spent on legal fees, and the patient or family are likely to wind up with a larger sum to compensate for medical injury.
By contrast, so-called tort reform caps the award –and this may discourage lawyers from taking malpractice cases. But when patients do sue, malpractice insurers still wind up paying a fortune in court costs and lawyers’ fees. This, in turn, hikes malpractice insurance premiums.
More importantly, tort reform does nothing to improve hospital safety. By contrast, hospitals that “disclose” also “fix.” No one pretends that that the hospital makes no mistakes. They trace what went wrong, (often it’s a system error) and repair. Moreover, as Kenen explains, hospitals that discuss medical injuries with patients also discuss mistakes internally:
“Hospitals that are succeeding with this model have had to change their culture in myriad ways,” Kenen writes. “They need to make sure that everyone from the executive suite to the greenest intern or lowest-paid aide know it is safe — not just safe but welcome and essential — to report errors, near errors, and potential errors. They need to create better mechanisms for figuring out if a bad outcome was avoidable, and to put in place any new protocols or safety systems to prevent it from happening again.”
Medical mistakes lead to needless suffering, and longer hospital stays. This is the best way to lift the quality of care while simultaneously saving health care dollars.
Finally, Kenen chats with Dartmouth’s Elliot Fisher about fear of malpractice, tort reform– and whether tort reform leads to less over-treatment. See her entire post on The New Health Dialogue.
First -There is NO “evidence based” data showing that “sorry works” actually works. If you read the actual studies upon which the claim that “sorry works” is based, you will find that they are all anecdotes or based on “studies” that have no control groups.
And, as is pointed out in the post “sorry works” is not easy to apply to most hospitals in which the defendants are not all under the same policy.
Furthermore, settlements are only cheaper than suits in some cases. Insurers are not stupid, in cases in which settlement is judged to be cheaper insurance companies generally settle. Of cases that go to trial, the majority are won by the defendants – and winning a case is cheaper than settling in most cases.
Second – Recently the CBO changed its much quoted estimate on the cost of “defensive medicine”:
“October 12, 2009 — Medical-liability reforms such as capping non-economic damages and tightening the statute of limitation for filing a suit would trim $54 billion from the federal deficit over 10 years, largely by curbing defensive medicine, according to a report released Friday by the Congressional Budget Office (CBO)….
The CBO estimate of tort reform’s potential to reduce the deficit is roughly 10 times greater than what it projected last December (a reduction of $54 billion instead of $5.6 billion).”
And since the CBO’s estimate is for what effect malpractice reform would have on the federal deficit, and the federal share of healthcare costs is less than 50%, the total savings would be at least twice that. This is a much higher estimate than Dartmouth’s Elliot Fisher makes and it is made by someone who has looked specifically at the issue.
And perhaps if we wait another year, the CBO will raise its estimate by another factor of 10!
The CBO number of $54 billion over ten years is the same as the previous estimate of $5 billion a year. Once again it amounts to about 0.2% of the health care spending. Of course, “a billion here and a billion there and pretty soon you’re talking about real money.”
I think most of us favor some form of tort reform. However, the ideas people often come up with turn out to be of little use in reducing health care costs. California and Texas have both enacted limits to pain and suffering judgements as well as other “reforms,” but are still in the top four states for total costs and rises in costs for health care.
I am a fan of the proposal to remove most malpractice from the court system and substitute a board system which would investigate and adjudicate complaints from patients without requiring a lawyer, as well as sanction doctors found to be significantly below standards. This was proposed in Emanuel and Fuchs, among others. Doctors need to realize, however, that this system might lead to MORE, not fewer, malpractice complaints, because of the greater ease of filing complaints and because of the absence of the cost filter that plaintiffs’ lawyers, who are not interested in losing money on cases, apply now.
An important other possibility is the creation and promulgation of standards of practice, ideally accompanied by protections against malpractice suits if the doctor can show the standards were followed. That has had a tremendous benefit in other countries, and has also had some success in the US when applied by anesthesiologists and others even without statutory cover.
Anecdotally, not scientifically, I personally worked in a multispecialty group where the medical director was a genius at fielding complaints and satisfying the grievances of upset patients and families without ending up in court, using many of the “sorry” system ideas.
Of course this was another system where everyone worked for the same employer and had the same insurer, which avoided the finger pointing tactics of many independent MD’s and their insurers. In fact, I would go so far as to say that in the stories I have heard, the most common cause of malpractice suits is having a physician who has upset a patient point to another physician as the person actually at fault as a way of placating the patient and avoiding suit.
Legacy & Pat S.
Legacy–
The “control” for “Sorry Works” is the same hospital’s experiences in the past.
This is, of course, not a scientific “control”–but it is a pretty good apples to apples comparison.
And from a hospital’s point of view, if suits drop and the cost of dealing with malpractice drops, common sense says that the program is working.
I agree that “Sorry Works” becomes more complicated when doctors don’t work for the hospital, and have different insurers.
This is another argumeng in favor of mutlispecialty centers where doctors all work for the same entity being more efficient and more collaborative. Finger-pointing is much less likely– problem solving focused on fixing the system to avoid this in the future — is much more likely.
On CBO’s numbers, please see Pat S.’s reply.
Settlements are not necessary cheaper than court awards, but if the settlement comes early in the process (with out threat of suit) the psychological cost to the doctor, patient and family is far ,far less. And of course, everyone avoids court costs.
Pat makes a couple of good points about using boards rather than courts–including the fact that you would probably see more complaints because patients and family would not have to persuade a lawyer to take the case.
And under such a system I would like to see sanctions for doctors who underperform (esp. repeatedly) much, much stiffer. Loss of license in some cases, or allowed to work only in a group assisting another doctor.
There are too many solo practioners out there who are working without anyone looking over their shoulder. Some are excellent; others aren’t, and no one knows who they are(except surgical nurses, and they dont’ talk).
Pat S.
Yes, I agree on all counts.
My only concern about a board is that it wouldn’t be tough enough. The advantage of having a plaintiff’s bar is that the best plantiff’s attorney’s are motivated by a sense that they are protecting the underdog– a zeal for justice — as well, of course, as wanting to win their share of the award. But I have known some excellent plantiff’s attorneys (Jim Moriary, for instance, who went after Tenet.)
I am afraid that a for-profit hospital with deep pockets, like Tenet, would find a board much more malleable–and less aggressive in pursuing justice.
The problem, of course, is who do you put on the board: physicians?(who are bound to identify with defendants, at least to some unconsicous degree); plaintiff’s attorneys? (docs wouldnt’ trust them); people who are neither (do they know enough about medicine to make fair judgements?)
Probably you would want some combination of docs and lawyers or judges with medical experience. Perhaps a consumers’ advocate, though I tend to prefer experts to laymen, since experts do possess knowledge laymen rarely have, and layment do tend to let emotions affect decison-making.
I very much like the idea of guidelines with legal protection for docs who follow the guidelines.
And I like what the state of Washington has done– protecting docs who follow shared decison-making protocols
Finally, Disclosue and Fix is my first choice because
sunlight is the best disinfectant, docs, nurses, patients and families are all likely to feel better if everyone is allowed to tell the truth from the very beginning, and this is the process that is most likely to lead to candid discussion of what went wrong within the hospital– and efforts to make sure it doesn’t happen again.
Maggie,
You say:
“The “control” for “Sorry Works” is the same hospital’s experiences in the past.
This is, of course, not a scientific “control”–but it is a pretty good apples to apples comparison.
And from a hospital’s point of view, if suits drop and the cost of dealing with malpractice drops, common sense says that the program is working.”
As I recall (and please correct me if I have this garbled), at the University of Michigan a new director of “risk management” was brought in and made MULTIPLE DIFFERENT changes (including “sorry works”) to how potential malpractice cases were handled.
One of the other changes he made was to take a harder line position with respect to settling cases in which he felt the hospital had no liability. Was this the cause of the drop in costs?
He also undoubtedly reviewed past claims and tried to “clean up” areas in which he thought the hospital was at risk. Was this the cause?
Bringing in a new person who makes MULTIPLE changes and finding improvement does not prove that ONE of those changes is effective.
If you tried to get approval for a new drug or treatment based on this type of data you would be laughed out of the FDA.
Bottom line – as appealing as the philosophy behind “sorry works” is to some – there is no good evidence that “sorry works” actually works.
Hi Maggie:
35 states have made doctors admissions of mistakes inadmissable in court which makes an apology a worthy exercise in being humble and human. While there are caps on non-economic damages, I know of no state limiting economic damages. The real probelem is getting damages for the elderly and new borns. If doctors are concerns about malpractice suits and insurance, the AMA could go much further in policing its own ranks of doctors and purging repeat offenders. http://www.citizen.org/documents/NPDB%20Report_Final.pdf “The Great Medical Malpractice Hoax”
run 75441–
Very interesting that 35 states make it possible for doctors to be candid in admitting mistakes.
This is progress.
And I agree, if physicians did a better job of policing their own, we wouldn’t have as much of a problem. A fairly small group of doctors attract the majority of suits.
Medical Mistakes can create severe problem or even leads to death. Its better to reduce them down.