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A New Way of Thinking About Medical Liability

By Dr. Christopher Hughes
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The AMA, in its AMA Wire publication, was recently "Making the Case for Medical Liability Reform" by citing an article in September's Health Affairs , that estimates the national costs of medical liability, including "defensive medicine" practices at $55.6 billion dollars, or 2.4% of total health spending. They then cited some of their own research showing significant costs of defending lawsuits, and the low success rate of cases that ultimately make their painful way to court decisions. They then argue that these figures make a "strong case" for reform, and that, "the AMA supports proven medical liability reforms to lower health care costs and keep physicians caring for patients."

Trouble is, although the AMA officially knows that there are reforms that do NOT include caps. Virtually every physician I know equates reform, or "tort reform" with caps on non-economic damages, period. The other remedies that even the AMA offers (you have to scroll down a bit on their page to get past the "caps" section, of course) are not even in the discussion. Which is a shame, because there are better remedies for our current, miserably dysfunctional system.

Physicians are moving past the old paradigm of "deny and defend," which posits that all liability claims, or even the whiff of a claim, must force us into lockdown.  We avoid discussing unanticipated events with patients or families, forcing their hand to file suit if they want to get any answers from the medical system at all. The patient safety movement and medical professionalism have forced OUR hands into acknowledging that this paradigm is neither fair nor ethical. We have a responsibility to be honest with our patients and families, we have a duty to investigate untoward outcomes, we are honor bound to minimize the possibility of future, similar events. Some states have forced our hand as well, with two now requiring mandatory written disclosure of serious events, and several other states requiring disclosure of other types, and still more passing rules protecting apologies from admission into evidence.

It will be difficult to step into this unknown void. In 2007, a group from the Harvard School of Public Health voiced the concerns of many in an article entitled, "Disclosure Of Medical Injury To Patients: An Improbable Risk Management Strategy," in which they argued that disclosure could lead to a massive increase in lawsuits from people who were injured by medical error, but weren't aware of it! The ethical problems with letting that fear paralyze us are unacceptable: could we really allow millions of people injured by error to not be dealt with honestly and forthrightly in order to limit our exposure to litigation? I hope not.

Many years ago, the VA Medical Center in Lexington Kentucky, began, a program of disclosing all errors. Dr. Steve Kraman, then Chief Medical Officer of that VAMC, describes the journey in a PowerPoint presentation (available here). After more than a decade of experience, they found that while the number of cases steadily rose, the expense of the cases steadily fell. And apparently, it felt right.

And yet, this was in a VA, not in a private setting. But some large health systems, and even one insurer, have taken the next logical step and become heroically proactive in addressing unanticipated (bad) outcomes of care. In a fascinating article in the Journal of Health and Life Sciences Law last year, a team from the University of Michigan Health System described the process of transforming the way UMHS handles adverse events and potential litigation. They were inspired by, and modeled their efforts after the VA program. I encourage you to read it for yourself, but the bottom line is that they have committed as

an organization to figuring out why people sue, and taking it head on. This means investigating and acknowledging failures, explaining when and why a bad outcome is just a bad outcome, helping families through the process of dealing with an adverse event, and using each event as an opportunity to improve care. Communication is the key here, as it is in nearly every part of health care.

Before I go, I did want to point out that although the AMA cited the Health Affairs article on liability costs, you should know that Health Affairs does "theme" issues, and the theme of the September issue was, indeed, medical malpractice and errors, and so there were several interesting pieces to read.

A few choice tidbits:

  • The fear of malpractice may be more akin to the fear of flying in its perception as a “dread risk,” uncontrollable, random, and devastating.
  • Reducing malpractice premiums might not do much to reduce defensive medicine expenditures.
  • Apology and disclosure laws have potential, but need work.
  • In the originally cited costs article, an interesting factoid: payments in economic damages at an estimated $3.15 billion per year are significantly larger than the dreaded noneconomic “pain and suffering” awards at $2.4 billion!
Addendum:

It has been pointed out to me that a study of the effects of the University of Michigan’s disclosure with offer system has been published in Annals of Internal Medicine.

The results are astounding: After full implementation of a disclosure-with-offer program, the average monthly rate of new claims decreased from 7.03 to 4.52 per 100 000 patient encounters (rate ratio [RR], 0.64 [95% CI, 0.44 to 0.95]). The average monthly rate of lawsuits decreased from 2.13 to 0.75 per 100 000 patient encounters (RR, 0.35 [CI, 0.22 to 0.58]). Median time from claim reporting to resolution decreased from 1.36 to 0.95 years. Average monthly cost rates decreased for total liability (RR, 0.41 [CI, 0.26 to 0.66]), patient compensation (RR, 0.41 [CI, 0.26 to 0.67]), and non–compensation-related legal costs (RR, 0.39 [CI, 0.22 to 0.67]).

Clearly, some confirmatory studies from a few other organizations would be very helpful, but coupling together that this approach is morally and professionally the right thing to do, and it seems to be successful beyond expectation, makes it the strategy for reform against which all reforms should be judged.

So, from now on, when I am told a political candidate supports “tort reform” or “med mal reform,” I will point out that if he supports caps, he does not represent the best interests of patients or physicians, nor does he support the most effective strategy for reforming our dysfunctional medical liability system!

(Thanks to Vivek Murthy for pointing this out!)

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