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Could it really be this easy? A bold new risk management approach—doctors tell the whole truth and apologize By Michael J. Moody, MBA, ARM
The September issue of Rough Notes contained an article about how the medical malpractice market could take advantage of risk retention groups (RRGs) to help alleviate some of the affordability and availability problems that are commonplace in this insurance market. As was pointed out in that article, while the RRG option can assist in moving through the current distressed conditions in this marketplace, a long-term solution will need to be found to ultimately resolve the medical malpractice “crisis.” Today’s med mal woes took root years ago. Back in 1999, for instance, an evolving trend was reported in an Institute of Medicine study. According to the study, about 100,000 deaths annually were caused by medical errors. Since its release, the report has gotten the attention of many in the industry; and while some try to argue that the figure is too high, the fact remains that this is a problem that must be resolved. The issuance of this report has also alerted both patients and their lawyers to the scope of this problem. Search for solutions Over the past few years, both health care providers and lawmakers have struggled to come up with some way to reduce the effects of the medical malpractice “crisis.” While a number of innovative approaches have been suggested over the years, most of the effort to date has been directed at tort reform. Tort reform at the state level has ended up being a patchwork of laws that have little in common and, until they are tested in court, do not provide the measure of protection that is required to lessen the “crisis.” Additionally, the Administration has spent a significant amount of political capital working on a federal statute that would limit pain and suffering to $250,000. Again, many experts believe that this is really slightly more than a band-aid that will provide little meaningful change to the medical malpractice landscape. At this point, something new needs to be found. What has been tried before, for the most part, has failed to produce the results that were expected. It is time for an “outside-the-box” approach to this nationwide problem that can offer a win-win solution for both the patient and his or her family, as well as the health care provider. A revolutionary idea For the past several years, a novel idea has been spreading slowly through the health care community, one that is so revolutionary that it may change the face of medicine forever. The idea is that health care providers would apologize for unanticipated outcomes. Obviously this is an idea that flies in the face of conventional wisdom in health care. Doctors and hospitals have typically been counseled by their legal staffs and their insurance companies to not say anything that could be used against them in court at some later date. But this defensive mentality is slowly being replaced by a new full-disclosure approach that lets the doctor apologize for bad outcomes and quickly make an appropriate settlement offer. While the approach differs from one health care institution to another, in general it follows a similar path. Initially, hospital administrative staff and doctors immediately investigate the incident to determine if the medical treatment met the appropriate standard of care. If the investigation determines that the standard of care was not met, (i.e., there was an error or negligence), the hospital schedules a face-to-face meeting with the patient and family. The meeting is designed to let the doctor apologize, provide explanations, and discuss how the doctor and the institution will address the problem in the future. Another critical issue that is addressed at the initial meeting is the offer of a fair, upfront compensation for the consequences of the error. According to a newly released book by Michael S. Woods, M.D., Healing Words, the power of apology in medicine, the concept is made up of four distinct aspects or as he refers to it, the four “R’s” of an apology: • Recognition—knowing when an apology is in order • Regret—responding empathetically • Responsibility—owning up to what’s happened • Remedy—making it right Many experts say that patients and their families sue because their disappointment over an adverse outcome is compounded by an apparent lack of sympathy from their doctor, leading to anger and bitterness which in turn leads them to a lawyer. Experts believe that the key to the “I’m sorry” approach is that an expression of sympathy and remorse can greatly reduce the chance of lawsuits. The future is today The “I’m sorry” concept is based in large part on the pioneering efforts of the Veterans Affairs Medical Center in Lexington, Kentucky. The medical center implemented a formal procedure, which requires the medical staff to promptly admit and apologize for mistakes. The procedure was adopted in 1987 after the medical center incurred two medical malpractice cases that cost it in excess of $1.5 million. Subsequent to the adoption of the procedure, the medical center has experienced an average payout of $16,000 per settlement. This compares favorably to the national average for VA hospitals that is $98,000 per settlement. An extremely important aspect of this approach is for the states to support the “I’m sorry” concept by allowing doctors to apologize for medical mistakes or even express sympathy without worrying that the information would be admissible in civil court. A number of states have already seen the wisdom of such an effort. Among the states that currently have laws on the books that make such information inadmissible in court or are trying this concept on a pilot basis are Arizona, Colorado, Florida, Illinois, Missouri, North Carolina and Oregon. Additionally, many other states are also reviewing this matter. On a national basis, President Bush recently signed a bill that would establish a confidential and voluntary system for reporting medical errors, considered by many as the first step in adopting an “I’m sorry” approach. A growing body of evidence Other health care systems that have begun working with the “I’m sorry” concept are the three hospitals and various health care facilities of the University of Michigan Health System. The University System has been encouraging their doctors to apologize for mistakes since 2002, with dramatic results. For example, the System’s malpractice lawsuits have dropped almost 50% from 262 in 2001 to 130 last year. In addition, their attorney fees have dropped from $3 million to $1 million annually. Similar experience has been achieved with the 28 hospitals in the Kaiser network, where officials report the program has reduced litigation and the network is saving money. The Children’s Hospital & Clinic of Minnesota and Johns Hopkins have also reported success with implementing the full-disclosure approach. Johns Hopkins implemented the program following a wrongful death case in 2001 and has been pleased with the outcome so far. Catholic Healthcare West is made up of 39 hospitals that have been using this approach for the past six years. Due to the success of the effort, the group has even been able to convince the insurance carrier of its independent contractor doctors to participate in the program as well. Other medical malpractice underwriters are also seeing the value of the “I’m sorry” approach. COPIC, which is Colorado’s largest medical malpractice carrier, implemented a similar program in 2000. Malpractice claims against the insurer’s 1,800 doctors have dropped by 50% since 2000 and settlement costs are down about 23%. In addition, Physicians Reimbursement Fund, Inc. (an RRG), located in California, implemented this approach about three years ago. Since that time, they reported a 40% reduction in medical malpractice claims payments as well as 40% reduction in number of claims. This has allowed the RRG to pass on savings to their insureds of about 50%. Interest in this unique approach to medical malpractice mitigation is growing daily. Currently, the Harvard Medical School’s major teaching hospitals are all considering adopting the full-disclosure approach. And the concept is also reaching the ranks of the medical schools as well. For example, Vanderbilt University now provides a mandatory course in communicating errors and apologizing. It must be taken by all medical students and residents. Conclusion The problems with the medical malpractice market are well known to most insurance professionals in the United States. Over the past three or four years in particular, these challenges have left doctors with a variety of problems that range from higher medical practice premiums to extremes like abandoning their practices. None of these situations help the beleaguered health care industry. And while tort reform does provide some limited relief from high claims costs, long term they will not assist in mitigating losses. This is a problem that requires new thinking, and such is the case with the concept known as “I’m sorry,” that allows a doctor to apologize for errors that may have occurred. Conceptually this may be difficult for doctors to accept, but the positive results to date are difficult to ignore. The medical profession should be willing to give this concept a chance to grow. Additionally, state legislators should also be willing to explore this option, even if it is only on a pilot basis. But, at the end of the day, can it really be this easy? Only time will tell. * |
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