Fewer new claims expected with disclosure
Practice being implemented in Massachusetts after legislation passes
Due to newly passed legislation, physicians throughout Massachusetts soon will be able to utilize a Disclosure, Apology, and Offer process, with the goal of shifting away from "the 'blame and deny' culture of secrecy, in which nobody learns from the adverse incident," reports Alan Woodward, MD, chair of the Massachusetts Medical Society's Committee on Professional Liability.
A partnership between the state's physicians and attorneys resulted in significant reforms to the medical liability system including facilitation of the Disclosure, Apology, and Offer approach, Woodward says. That approach is expected to reduce unnecessary and protracted lawsuits while improving patient safety, he says.
"We are taking a model that has been successful in multiple hospital systems, and working to implement it across the state," says Woodward, pointing to a significant reduction in litigation costs reported by the University of Michigan Health System.1 "The most impressive thing is that by learning from mistakes and instituting policies and procedures to eliminate a recurrence, they have seen a dramatic reduction of the number of new cases, by about 50%," he says.
With Disclosure, Apology, and Offer, doctors will take responsibility for errors and patients won't have to go to a lawyer to get full information and compensation, says Woodward. "This is a fundamental transformation. Right now, we have an adversarial system that is very reactive and punitive and we know drives defensive medicine costs," he says.
In Massachusetts, an injured patient waits an average of five years to receive an award, whereas in the new system awards are expected to be disbursed within months, says Woodward. "Patients [under similar systems] are typically offered fair and appropriate compensation in a timely fashion. That's not how you save money," he says. "What you are saving is the cost of overhead and unnecessary litigation, and the cost of recurrent errors."
Using the Disclosure, Apology and Offer system, the patient's rights aren't compromised in any way, adds Woodward. "If they get through this process and they don't think it's appropriate or just, they still can go forward with litigation," he says. "But they are litigating in an environment where a root cause analysis was done and showed the physician did nothing wrong." (See story p. 47 on possible legal risks for not disclosing errors.)
Reference
- Kachalia A, Kaufman SR, Boothman R. Liability claims and costs before and after implementation of a medical error disclosure program. Ann Intern Med2010; 153(4):213-221.
Physicians who don't disclose will stand out in the courtroom Juries will want to know why errors were not disclosed After a patient received a transfusion of six units of the wrong blood due to a mixup of blood samples at University of Michigan Health System (UMHS) in Ann Arbor, the patient experienced flu-like symptoms for a few days and underwent testing, but the patient had no other consequences. The error was disclosed and an offer made for financial restitution, according to the organization's disclosure practices. "We could not agree on a number, and that case went to trial. We told the jury upfront about the mistake and how we handed it with the patient: straightforwardly, honestly, and apologetically," says Richard C. Boothman, chief risk officer. The jury returned a verdict of zero, finding that the patient suffered no harm as a result of the error, which Boothman attributes to providers being open and honest about the mistake. "When we talked to the jury later, to a person they told us that they were so impressed with the honest way we handled it," says Boothman. "They were equally chagrined at what they perceived as over-reaching by the patient and his lawyer." With error disclosure becoming more commonplace, Boothman says that the way in which physicians choose to handle unanticipated outcomes will increasingly be the subject of cross examination and argument in court. "I think the penetration, finally, of the importance of honesty could make those who aren't forthcoming stand out for sure," says Boothman. "In the few cases we've had to try since becoming more and more transparent, we have showcased our approach." Evidence that the physicians were honest with patients about unplanned complications goes a long way to enhance their credibility with juries, says Boothman. "Courtrooms are all about credibility. And there's nothing more credible than folks who have acted consistently with the positions they take later in the courtroom," he says. The public has much higher expectations for transparency, adds Boothman, and the way doctors conduct themselves in the aftermath of a medical mistake will become increasingly important. Because of this emphasis, the organization's disclosure practices now include follow-up communication with patients in writing to reinforce what has been discussed verbally. "We do that because human beings filter verbal communication and remember it differently after the fact," says Boothman. "To ease the risk of ambiguity, we are pretty careful to put key points in writing now after the disclosures." Source For more information on disclosure and liability risks, contact:
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Due to newly passed legislation, physicians throughout Massachusetts soon will be able to utilize a Disclosure, Apology, and Offer process, with the goal of shifting away from "the 'blame and deny' culture of secrecy, in which nobody learns from the adverse incident," reports Alan Woodward, MD, chair of the Massachusetts Medical Society's Committee on Professional Liability.
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