Innovations in Addressing Malpractice Claims, Part I

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1 Innovations in Addressing Malpractice Claims, Part I This roundtable discussion is brought to you by the AHLA s Alternative Dispute Resolution Service and is co-sponsored by the Healthcare Liability and Litigation (HLL) Practice Group. May 4, :00-1:00 pm Eastern Presenter: James B. Battles, PhD, Social Science Analyst for Patient Safety, Center for Quality Improvement and Patient Safety (CQuIPS), AHRQ, Rockville, MD Honorable Judy Kluger, Chief of Policy and Planning, New York State Courts, New York, NY Moderator: Geoff Drucker, Manager, Dispute Resolution Services American Health Lawyers Association, Washington, DC 1

2 AHRQ S MEDICAL LIABILITY & PATIENT SAFETY INITIATIVE James b. Battles, PhD AHRQ Rockville, MD James.Battles@AHRQ.HHS.Gov 2

3 Background Long history of medical liability reform in the United States Primary focus has been on liability reform (e.g., caps on damage amounts) Shift from liability to medical liability and patient safety

4 Reducing Patient Safety Incidents by 10 decreased claims by

Presidential Action On September 9, 2009, President Obama addressed a joint session of Congress to announce his proposals for health insurance reform.

5 Presidential Action On September 9, 2009, President Obama addressed a joint session of Congress to announce his proposals for health insurance reform. One component of such a plan includes investing in new ways to manage medical liability claims. The President stated: So I'm proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine. I think it's a good idea, and I'm directing my Secretary of Health and Human Services to move forward on this initiative today.

6 Goals Put patient safety first and work to reduce preventable injuries Foster better communication between doctors and their patients Ensure that patients are compensated in a fair and timely manner for medical injuries, while also reducing the incidence of frivolous lawsuits Reduce liability premiums

7 Current Grants Awards announced June 11, 2010 Address patient safety and medical liability Four goals of the initiative (patient safety first, communication, compensation, reduce liability premiums) $23 million 20 grants awarded (7 demonstration, 13 planning) Largest government investment linking medical liability to quality Variety of models

8 Demonstration Grants States and/or health care systems 3 year grants Up to $3 million/grant 7 demonstration grants Total $19.7 million

9 Preventing Harm Through Best Practices Birth Injury/Harm one of the largest areas of liability Two projects focusing on Labor & Delivery Fairview/Premier Ascension Health System Projects use intervention bundles Teamwork (TeamSTEPPS ), simulation and checklists

10 Improving communication with Patients Recent research has shown that improved communications with patient and families resulted in 70 percent of claims dropped once information shared. These projects are testing whether better communication can lead to fewer lawsuits, fairer and faster compensation, and improved patient safety.

Improving communication with Patients University of Illinois at Chicago Seven Pillars, event reporting, event investigation, communication with patients, hospitals University of

11 Improving communication with Patients University of Illinois at Chicago Seven Pillars, event reporting, event investigation, communication with patients, hospitals University of Texas System Focusing on disclosure training for UT System Physicians and Residents University of Washington Implementing disclosure and resolution program to community hospitals statewide

12 Early Results Engaging all stakeholders, patients, hospitals, risk management companies and trial lawyers in reaching consensus about the benefits of Disclosure and Offer process. Training physicians and others health professionals in the disclosure process is critical. Projects have developed resource materials for training in D & O Settlement times have dramatically degreased and total liability costs are being reduced.

13 Alternative Methods These projects seek to improve resolution after a malpractice claim has been filed. Investigating new methods for negotiating settlements may prevent protracted legal battles that delay resolutions for patients and their families.

14 New York State Unified Court System, New York, NY use of an expanded and enhanced judgedirected negotiation program currently used in New York s courts The judge facilitates the negotiations but does not impose a settlement amount. The plaintiff may move ahead to trial if the parties do not agree on a settlement. One significant advantage of this program is that it does not require any changes in law.

15 Planning Grants States and/or health care systems 1 year grants Up to $300, grants awarded Total $3.5 million

16 Planning Grants Examples Developing and implementing a method for setting priorities for developing evidence-based guidelines, craft a broadly supported safe harbor legislative proposal that will define the standard of care, and develop a plan to evaluate the effectiveness of the legislative proposal. (Crider, Oregon) Developing a measurement and analysis system to monitor the quality of care at hospital discharge to identify safety concerns and improve patient safety, and to alert health system leaders in real time of events that place the health care organization at risk for malpractice claims and to identify patient safety problems (Davis, Maryland)

17 Grant Status Planning grants are winding down with 5 on extensions Demonstration grants are at a mid point and showing significant results Grants are on target to accomplish the medical liability and patient safety aims set forth in their proposals

18 Evaluation Contract An independent program evaluation across all patient safety and medical liability grants Awarded to JBA/RAND $2 million dollars/5 years Assess the impact of the projects and activities Measure and document how well the projects have contributed to addressing the patient safety and medical liability concern

19 NEW YORK STATE OFFICE OF COURT ADMINISTRATION New York State Office of Court Administration 25 Beaver Street, Suite 1128 New York, NY Hon. Judy Harris Kluger Chief of Policy and Planning New York State Courts

20 Costs Associated with the Medical Liability System Nationally, in 2008, annual medical liability system costs, including defensive medicine, were estimated to be $55.6 billion or 2.4% of total health care spending New York State leads the nation in the number of claims filed nationwide - 14 % of claims filed in all 50 states; In 2009, New York State hospitals spent $1.6 billion to cover medical malpractice expenses 30-50% of all malpractice premiums in New York State are directed toward obstetrical cases (approximately $500-$800 million) - half of which are Medicaid insured Recently, in New York City, one hospital s premiums increased from $53 million to $115 million in less than 5 years As reported in Health Affairs 9/2010 and by the New York state Department of Health

21 Implementing the President s Vision: $25 million in Funding 1 Put patient safety first and work to reduce preventable injuries Foster better communication between doctors and their patients Ensure that patients are compensated in a fair and timely manner for medical injuries, while also reducing the incidence of frivolous lawsuits Reduce liability premiums

22 The New York City Health & Hospitals Corporation Model (The HHC Model) A process where meritorious claims are promptly identified and resolved, and just as importantly, where meritless claims against doctors and health providers are also promptly identified and resolved Key Components of the HHC judge-directed negotiation model are: Specialized training for the judges in relevant areas of medicine and mediation skills Assignment of a dedicated judge from the earliest stage of litigation Attendance at each settlement conference by parties who are familiar with the facts of the case and have the authority to settle As a result of the implementation of the court model and in-hospital patient safety initiatives, medical malpractice costs were reduced by approximately $50 million per year

23 The UCS Grant: The New York State Medical Liability Reform and Patient Safety Demonstration Project In 2010, the UCS was awarded a federal grant from the Agency for Healthcare Research and Quality ( AHRQ ) Three components of the New York State AHRQ grant 1 A new in-hospital Early Disclosure and Settlement Program 2 A Robust and Proactive Patient Safety Initiative 3 Dedicated court parts that will engage in Judge-Directed Negotiations Grant Collaborators NYS Department of Health Harvard School of Public Health Center for Court Innovation Mount Sinai, Beth Israel, Montefiore, Maimonides and the Presbyterian hospitals

Medical Liability Reform and Patient Safety NYS Office of Court Administration Cases Not Settled Patient Safety Initiative Proactive Patient Safety Initiatives Adverse Events Analysis Adverse Event

24 Medical Liability Reform and Patient Safety NYS Office of Court Administration Cases Not Settled Patient Safety Initiative Proactive Patient Safety Initiatives Adverse Events Analysis Adverse Event Response HOSPITAL ENVIRONMENT Suit Filed JUDICIAL SYSTEM Early Disclosure and Settlement Program Disclose Communicate - Remediate Judge-Directed Negotiations Traditional Trial Evaluation and Dissemination

The Hospital Initiatives Developing a Culture of

patient safety Reviewing adverse event data to

proactive new and alternative approach to approaches

25 The Hospital Initiatives Developing a Culture of Patient Safety Enhancing a proactive approach to patient safety Reviewing adverse event data to identify clinical intervention Enhancing Testing a proactive new and alternative approach to approaches patient safety Researching best practices and creating their own

to the patient when an adverse event occurs Training staff and implementing the new procedures of

26 The Hospital Initiatives Establishing or enhancing a system to identify adverse events Enhancing a proactive approach to patient safety Developing a comprehensive policy and process for disclosure to the patient when an adverse event occurs Training staff and implementing the new procedures of disclosing errors to patients and, where appropriate, offering settlement before a lawsuit is commenced

27 The Court Initiative: Judge-Directed Negotiation 2 Hospital Meetings 3 Meetings with the plaintiff s bar 4 Training 1 Case Identification 5 The JD/RN

Case Identification and Processing Does Judge-Directed Negotiation Actually Work Request for Judicial Intervention (RJI) filed If grant hospital is a named

that can settle pre-discovery? OR Is this a case in which discovery can be streamlined? OR Is this a case that requires a complete discovery schedule?

28 Case Identification and Processing Does Judge-Directed Negotiation Actually Work Request for Judicial Intervention (RJI) filed If grant hospital is a named defendant, case is flagged and sent to designated part Hospital / Insurer / Defense Attorney make an initial assessment Preliminary Conference Is this a case that can settle pre-discovery? OR Is this a case in which discovery can be streamlined? OR Is this a case that requires a complete discovery schedule? Settlement Conference Discovery Compliance Conference Discovery Compliance Conference Settlement Discovery Schedule Settlement Conference Note of Issue Settlement Note of Issue

29 A Case Study Facts Request for Judicial Intervention Preliminary Conference Compliance Conference Settlement Conference Final Settlement Conference

30 Your questions?

31 Innovations in Addressing Malpractice Claims, Part I 2012 is published by the American Health Lawyers Association. All rights reserved. No part of this publication may be reproduced in any form except by prior written permission from the publisher. Printed in the United States of America. Any views or advice offered in this publication are those of its authors and should not be construed as the position of the American Health Lawyers Association. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought from a declaration of the American Bar Association 31

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