When It Comes to Liability and Patient Safety, What's Good for Hospitals Can Be Good for Patients

Medical error prevention is a work in progress. We should be impatient with the pace of progress, as Doroshaw is, because it means that patients are daily suffering avoidable harm. But we should also seek to understand the reasons why the pace isn't faster.
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Joanne Doroshaw's blog post on hospital-based communication-and-resolution programs (CRPs) is a stunner -- not for its insights about patient safety, but for the suggestion that CRPs are a step in the wrong direction.

CRPs are an approach taken by hospital systems and their liability insurers to responding to unexpected outcomes of medical care ("adverse events") that is based on simple principles: Report events to hospital risk-management and quality-improvement personnel quickly. Tell the patient and family what happened. If the harm was caused by a medical error, admit it and apologize. If you're not sure at the outset, let the family know a review is being conducted and that you'll be contacting them when it's finished -- then make sure you do. Conduct that review expeditiously. If an error caused the harm, offer compensation that is adequate to redress the patient's losses, without waiting for him or her to sue. If the standard of care was met, on the other hand, explain why and answer the family's questions. Let them know the hospital will stand behind the care providers but will make appropriate efforts to meet the patient's medical and psychosocial needs. Finally, scrutinize each case for opportunities to prevent a recurrence of the event.

Doroshaw is an advocate, and advocates should ask hard questions. But her characterization of CRPs is misleading in several respects. Moreover, she doesn't ask the questions patients should be asking about these programs.

I've spent the past five years asking questions about CRPs in a series of academic research projects funded by the federal Agency for Healthcare Research and Quality and the Robert Wood Johnson Foundation. I led the studies about which Doroshaw wrote in her post. Some of this work has involved studying CRPs from the outside, while other projects have involved trying to implement them in new settings.

What have we learned? My conclusion is that the CRP model is the most promising, achievable avenue for improving the medical liability environment for both patients and care providers. But doing CRPs well is hard. Routine disclosure and proactive settlement are nothing short of a cultural transformation for many hospitals, insurance companies, and physicians. They don't get it right all the time -- but patients should support their efforts to evolve. Here's why.

Although nobody disputes that disclosing medical errors to patients is the right thing to do, historically, hospitals haven't done a great job of supporting physicians in doing it. Patients might be surprised at how many hospitals still don't provide disclosure training, coaching, and support to their clinical staff. We also know from safety culture surveys that many hospitals still have a long way to go in creating an environment in which care providers believe they can be open about errors without triggering an unduly punitive response. Finally, physicians confront a high-risk malpractice liability environment in which disclosure can have serious personal and professional consequences -- especially since they get reported to the National Practitioner Data Bank (NPDB) and state boards of discipline whenever a malpractice claim against them is paid.

Doroshaw's post raises the question: Isn't that reporting a good thing? The NPDB was set up to improve patient safety by preventing incompetent physicians from being able to hop state lines and get credentialed at another hospital, endangering a new group of patients. Of course we need to prevent that from happening.

The problem is that malpractice payments are a poor proxy for incompetence. Research by my group at Harvard found that about a quarter of paid claims don't actually involve an injury caused by a medical error. And when errors do occur, they're often not the sort that Doroshaw appears to have in mind. Lapses and slips, interacting with systems that fail to stop them from causing harm, are more frequently the culprits than outright incompetence. Unfortunately, requirements for reporting to the NPDB and state licensing boards don't distinguish incompetence from lapses, or individual from organizational failings. So one question that patient advocates should be asking is: What are we getting from all this reporting of malpractice payments? Is it making health care safer? Although the system surely has caught the occasional "bad apple," at the population level, there's no evidence that it has improved safety outcomes.

What does seem clear is that these reporting requirements chill physicians' willingness to report and disclose adverse events, and to agree to provide compensation to injured patients, especially where they feel systems problems were a major contributor to the injury. Without their full participation, we lose information and opportunities for rapid intervention. Because of this problem, I have begun to wonder whether the NPDB is serving its goal or whether there are better ways to identify incompetent providers.

Asking this question isn't, as Doroshaw suggests, forcing a choice between honoring patients as the true victims of medical errors and slapping the victim label on physicians. No one is suggesting that providers be relieved of accountability for errors. Nor are CRPs shying away from reporting individual practitioners when they are individually negligent. What is being suggested, instead, is that there are better ways of holding individual and institutional healthcare providers accountable than our traditional processes of reporting malpractice payments and suing physicians. A key question for patients to ask is: When hospitals decide an NPDB report isn't appropriate, what do they do to make sure the systems problems they found won't recur?

CRPs, when operated in a manner faithful to their principles, hold out the prospect of addressing problems in care far more consistently, efficiently, and effectively than traditional systems. Our studies found that they resulted in many more adverse events being tracked and investigated by hospitals than would otherwise be the case. They can also improve economic incentives for safety by increasing the likelihood that an error will result in a compensation payment to a patient -- something that is exceedingly low in the present system, in which only 2-3 percent of patients injured by negligence file malpractice claims.

Our research also found, though, that CRPs aren't always operated with high fidelity to their principles. When it comes to offering compensation, some insurers aren't as proactive as they might be, preferring to wait for the patient to raise the topic of compensation and sometimes requiring the patient to jump through procedural hoops. That isn't consistent with the goals of CRPs, and it's not characteristic of all programs, but where it occurs it needs to be addressed. Thus, an important question for patients to be asking about CRPS is, what do you mean when you say you're "proactive" in offering compensation?

But Doroshaw is off the mark in suggesting that CRPs are out to "short-change" patients with quick, "partial" settlements, that they conceal key facts, and that they do not allow patients the chance to consult with others about whether they are giving up important rights. There is, quite simply, not a shred of evidence to support the proposition that what patients are offered is less than reasonable compensation for their injuries. Further, hospitals and insurers tend to be quite particular about making sure that patients are represented by an attorney before they accept a settlement and waive their right to sue. They don't want to run the risk that a judge might later overturn the settlement, for one thing. This is especially true in the scenario Doroshaw presents, the severely brain-injured newborn. To suggest that such a case would be settled without the involvement of an experienced plaintiff's attorney is ludicrous.

What we do have evidence for, in spades, is that the traditional litigation system is exceedingly difficult for patients to access; isn't a reliable mechanism for sorting meritorious from nonmeritorious claims; and results in wildly varying damages awards for similar injuries. Plaintiffs lose four out of five malpractice trials. They don't get paid in a quarter of claims that involve an injury due to negligence. Temporary or moderate-severity injuries are rare among claims because they aren't attractive to plaintiff's attorneys, who work on a contingent-fee basis. The median time between filing a claim and getting a resolution is three years. Does Doroshaw really think patients ought to be forced to use this system to obtain compensation? Instead, patients should take advantage of the opportunity to work with CRPs, where available, and ask, what resources can be developed to connect patients with high-quality legal representation at affordable cost?

About one thing, Doroshaw is right: Hospitals still have a long way to go in improving patient safety. They've made some significant strides, as a recent report highlights, but preventable harms still occur with dismaying frequency. Doroshaw criticizes the hospitals in our study for admitting they have room for improvement in using lessons learned from adverse events to improve safety. But if I ever encountered a hospital that claimed otherwise, as a patient, I would run.

Medical error prevention is a work in progress. We should be impatient with the pace of progress, as Doroshaw is, because it means that patients are daily suffering avoidable harm. But we should also seek to understand the reasons why the pace isn't faster. Hospitals can't fix what they don't know about, so a basic prerequisite is fostering a culture in which adverse events get promptly reported. CRPs do that. Acting on clear opportunities for improvement is also critical. CRPs do that.

There are a couple of big barriers that remain, though. One is that now that hospitals have addressed a lot of the low-hanging fruit in patient safety -- highly prevalent injuries with an obvious cause that can clearly and easily be fixed -- what they're left with is a highly heterogeneous group of injuries with much more complex causation. The fixes are tougher, and it's not always obvious which hole in the dike one ought to focus on plugging, when there are so many.

Another problem is resources. I have often been surprised to learn how low the budget and manpower are for risk-management and patient-safety functions within hospitals. The people who staff these offices are caring, hardworking individuals who are often overwhelmed by their responsibilities. They are so consumed with "putting out fires" that it can be hard to maintain focus on prevention activities like tracking patterns of adverse events and implementing process improvements. So patients should be asking of their hospitals, are you giving your safety improvement offices the resources they need to succeed in their mission?

The resource problem emerged in our research as a reason why some CRPs haven't achieved as much as others in terms of safety improvement. But CRPs can help hospitals make better use of the resources they have -- coordinating work among offices of risk management, safety, and quality, for example, or helping them organize workflow so that cases move along without delay or missed steps. Under-resourcing has to be addressed, but is hardly a reason to jettison CRPs as useless.

In 1980, presidential candidate, Ronald Reagan, famously asked voters, "Are you better off now than you were four years ago?" Similarly, patient advocates ought to ask, "Are patients better off with CRPs or without them?" To me, the answer is clear.

Anyone who has watched a loved one get wheeled into an OR knows the intense vulnerability that patients and families experience in receiving healthcare. When their worst fears are realized, they deserve to have their needs met. We know from research by Tom Gallagher and others that this means getting information about what happened, hearing providers accept responsibility for preventable harm, and knowing that steps will be taken to prevent another family from having the same experience. CRPs can create an environment of care in which we can realistically expect this to occur consistently. However loudly Doroshaw might demand it, without that environmental change, it won't.

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