Even before Barack Obama became president and nudged the Democrats to recognize the imperfections of the U.S. malpractice system, he had a plan. Along with Hillary Clinton, then-Sen. Obama introduced legislation in 2005 to encourage doctors and hospitals to "disclose and apologize" for errors — a departure from the typical malpractice stance of "defend and deny."
In his first year as president, Obama established a $25 million federal grant program to help health systems set up early disclosure programs. In these models, hospitals and doctors share information about errors, apologize and compensate patients and families. They figure out what went wrong and take steps to make sure it does not happen again.
"Deny and defend," in contrast, generally means years of litigation, lots of expense and not a whole lot of progress toward creating a "culture of safety" in a flawed health care system where, according to the Institute of Medicine, tens of thousands die each year from medical errors and hospital-acquired infections.
The new health reform law creates an additional $50 million fund for states to experiment with alternative dispute resolution, possibly including "health courts" or pre-certification of lawsuits to weed out "frivolous" ones.
Expect to hear more about malpractice in the coming months and years. The medical profession wants more action, and the Republicans are not likely to stop insisting that strict limits on malpractice damages will fix much of what ails U.S. health care - even though researchers like Elliott Fisher of the Dartmouth Atlas and Amitabh Chandra of Harvard's School of Public Health say that the states with the malpractice award caps are not necessarily the states with less wasteful medical spending. McAllen, Texas, for instance, became the poster-city for medical excess after a New Yorkerexpose, even though Texas has already enacted damage caps.
Partisan slogans aside, the malpractice system is slow, costly, inequitable and inconsistent. Doctors' fixation on malpractice, the widespread perception that inside every patient is a plaintiff yearning to be free, is an impediment to having doctors embrace, or at least accept, new ways of providing health care that reward quality rather than the quantity of tests, images and procedures.
Disclose and apologize doesn't mean the hospitals or doctors say to a patient or family, "Something went wrong. We're sorry. Here's a check. Ciao." It means, or should mean, they say something like, "You had a bad outcome. We are sorry. We will try to help you while we investigate what happened. If it was our fault, we will take financial and moral responsibility. We will do our best to make sure it never happens again to anyone else."
Investigations can be long and complex; it can be hard to distinguish between a medical error and an unfortunate outcome. Malpractice is misfortune, but misfortune is not necessarily malpractice. Disclose and apologize may lessen the conflict and speed the healing for both. But that's not all it takes.
"Saying, 'I'm sorry' alone doesn't work," said Tim McDonald, a physician and lawyer who is chief safety and risk officer at the University of Illinois health system in Chicago. "You've got to have internal transparency, break down barriers of communication, have a robust investigation and a process of improvement."
The early disclosure concept dates back to at least the mid-1980s; currently a handful of health systems, mostly academic medical centers like the health systems at the University of Michigan and the University of Illinois, have adopted it.
But it's hard to replicate. State laws vary; rules on discovery, evidence — even physician expressions of empathy — can be perceived as invitations to sue rather than incentives to disclose. The fragmentation of U.S. medicine, where the interests of hospitals and doctors don't always coincide, is a challenge.
Then there is the physician psyche. Doctors take an oath to "do no harm," and are ill trained and ill equipped to cope when harm occurs. From their earliest days in medical school, according to the recent Lucien Leape Institute of National Patient Safety report, the culture of "name, blame and shame" dominates. Few hospitals, according to a U.S. government survey, have strong systems to support disclosing errors internally, never mind sharing them with patients. All that makes it hard to apologize.
But the apology is important. Just ask Linda Kenney — she nearly died from a medical error during ankle surgery.
Now Kenney runs a Boston-based nonprofit, Medically Induced Trauma Support Services, that helps patients — and clinicians — deal with the fallout of errors, to stop the blaming and shaming.
"My anesthesiologist sent a letter to my house a week after I was discharged," said Kenney, who went into cardiac arrest after a nerve block was administered. "He wrote that I am sorry this happened to you; it affected me. I hope you will find the time to heal. He enclosed his home and beeper number," she said. "He had been told not to reach out or talk to me. This was 1999. I didn't know what a brave thing he had done."
She was 37 at the time, the mother of three. Her recovery was arduous, her trauma deep. Her husband wanted to sue; she considered it. Instead, she opted to put her energy into healing - healing herself and healing the system.
That system, the way U.S. medicine is organized, is itself a barrier. Both Michigan and Illinois are academic medical centers with salaried doctors, employed by the hospital system. They all have the same management and a shared mission. More practically, they all have the same malpractice insurer.
That's not always the case. In many communities, doctors have contractual affiliations and arrangements with several hospitals, but they aren't employees. Not only can the hospital and the doctors have different malpractice insurers, but various doctors and specialists involved in a case can have separate insurers, and not all of them agree on the wisdom of coming clean.
At a daylong seminar on disclosure featuring experts from Illinois and Michigan, and sponsored by the Institute of HealthCare Improvement, participants were both enthused by the concept and skeptical about creating it. "We went to the board — not a lot of traction," one Kansas City physician said in an interview. "You are dealing with multiple practitioners and competitors — physicians also work at other hospitals," said Joanne O'Brien, a hospital attorney in Tucson. "Insurers are not particularly enthralled by the prospect of honesty," said Debbie Datte, the general counsel at Abington Memorial Hospital in Pennsylvania, which has a state law mandating disclosure of serious adverse events.
Illinois' McDonald, who has been educating doctors about legal issues and lawyers about medical issues, has been thinking hard about how to overcome barriers. The health reform legislation will encourage greater physician-hospital integration where disclosure programs might take root.
But changing the health care delivery system is a slow process. In the meantime, McDonald has been working with a half-dozen community hospitals (that don't have their doctors on staff), the state medical association and trial lawyers. The hospitals have agreed to test disclosure models in those community settings; the doctors and lawyers concur that the time has come. "Once you get stakeholders in the same room ... they see it's a win-win situation," said McDonald, who is also consulting on an effort to change Colorado law to make it easier for physicians to share information without fear of exposure to a malpractice suit.
Douglas Wojcieszak, a consultant who runs SorryWorks, an organization that promotes disclosure, cited other approaches, including hospitals that bring physicians into a pooled or unified medical malpractice insurance program. In some communities, hospitals, doctors and insurers are sitting down to jointly brainstorm ways of making disclosure work, even in a fragmented system.
"The vast majority of medical malpractice insurers out there are looking at disclose and apology as a way to reduce costs," he said.
Disclosure doesn't mean patients give up the right to sue, nor does it mean they all decide not to sue. But Michigan has found that disclosure — coupled with a thorough protocol for investigation, communication, compensation and quality improvement — has gone hand in hand with fewer lawsuits and smaller damages. When the hospitals determine it was not at fault, that the care was reasonable, and the family still fights back, Michigan will vigorously defend itself in court, chief risk officer Richard Boothman said. Usually the health system wins.
"Today we have 89 cases on the book, only 15 in litigation — all the rest in some stage of talking," he e-mailed in a follow-up after the seminar. That's down from a decade ago on both counts. Overall, it takes about eight or nine months to settle a case now, about half the 2000 levels, although there has been a slight increase recently. Physicians and other staff spend less time dealing with cases; costs have dropped. Boothman said both physician satisfaction and overall safety in the hospital have increased.
Most experts in patient safety see errors as the result of bad systems, not bad actors. The disclosure looks at systems, not just individuals. But even when there is a "rotten apple" — a plastic surgeon who should have gone into another line of work, a surgeon whose hands aren't as steady as they used to be before his own bout of illness — the system doesn't intervene. The apple keeps rotting. At Michigan, for instance, Boothman's team learned that anesthesiologists had long recognized a diminished surgeon as a risk. Anesthesiology made special staffing arrangements as backup; clerks made sure extra units of blood were on hand before that surgeon even picked up the scalpel. This went on for six years. It didn't stop until something went very wrong, when a middle-aged woman bled to death during elective surgery. The surgeon no longer has his scalpel.
Boothman believes that the maturation of Michigan's internal reporting system, the sensitivity to near misses and early identification of potential errors, is creating a safer environment for future patients.
Safety and healing are the raison d'etre of health care. Dr. Don Berwick, president and CEO of IHI, and one of the nation's leading voices on patient safety (he reportedly will be nominated to head the federal Centers for Medicare and Medicaid Services last week), believes the disclosure model holds far more promise for patients and their doctors than arbitrarily capping malpractice damages.
"The first place to start is healing," said Berwick. "Apology disclosure, dialogue, conversation — those are reliable. They are more authentic. It puts the attention on the process of healing."
Are you on Facebook? Become our fan.
Follow us on Twitter.