Innovations in Addressing Malpractice Claims, Part II 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 15, 2012 12:00-1:00 pm Eastern Presenter: Richard Boothman, JD, Chief Risk Officer, University of Michigan Health System, Ann Arbor, MI boothman@med.umich.edu Jessica S. Scott, MD, JD, Director of Healthcare ADR Innovation, Carolina Dispute Settlement Services, Raleigh-Durham, NC, Jessica@IACTProgram.com Moderator: Geoff Drucker, Manager, Dispute Resolution Services American Health Lawyers Association, Washington, DC, gdrucker@healthlawyers.org 1
The Transparency Imperative The lawyer s role: barrier or facilitator? 2012 Richard C. Boothman 2
What IS our role and responsibility in the medical malpractice issue? 3
Deny and Defend Time-honored approach to patient injury Care givers are conditioned to avoid discussion about what happened and never, ever offer judgment about how it happened, or discuss whether the outcome was the result of a true mistake Care givers often disappear as the patient transitions to other care givers who address the patient s new clinical needs Care givers/health systems look to risk managers or commercial claims professionals who brace for the claim Claim comes, often months-to-years after the adverse outcome In the interim between adverse outcome and claim, the patient forms opinions about what happened and why through advice of family, friends and lawyers While waiting for claim the health care provider often does nothing to address what happened instructed not to talk about it and most of the time, makes no clinical changes to prevent the same thing from happening to someone else 4
Deny and Defend Time-honored approach to patient injury So, how is it working for the health care community we serve? 5
The status quo Repeated malpractice crises Honest discussion seen as scary, unthinkable Deep fear about disclosures, reporting Increasing regulatory/accreditation intrusions IOM sees no change in medical errors Financial incentives not aligned with quality of care, cost effectiveness of care Defensive medicine reason for high cost Culture change almost unrecognizable 6
Forgive and Remember by Charles L. Bosk Sociologist s study of a Surgery service at a major academic medical system. Published in 1979. Little has changed. 7
What do our patients expect? 8
What drives patients to sue their care givers? Four common themes: 1) the need for an explanation; 2) a desire to ensure the safety of others; 3) sense of accountability; 4) compensation. Vincent, C, Young, M, Phillips, A Why do people sue doctors? A study of patients and relatives taking legal action. Lancet 1994; 343:1609-13 9
When asked if anything could have been done to avert legal action, 37% said an explanation and apology would have made a difference. Vincent, C, Young, M, Phillips, A Why do people sue doctors? A study of patients and relatives taking legal action. Lancet 1994; 343:1609-13 In another study, 24% said they filed when they realized the physician had failed to be completely honest with them about what happened, allowed them to believe things that were not true, or intentionally misled them. Hickson, G, Clayton, EW, Githens, P, Sloan, F Factors That Prompted Families to File Medical Malpractice Claims Following Prenatal Injuries 267 JAMA 1359, 1361 (1992) 10
Patients harmed by medical errors want three things: an explanation, an apology and an assurance that changes have been made to prevent harm from being done to someone else. Leonard J. Marcus Director of the Program for Health Care Negotiations and Conflict Resolution, Harvard School of Public Health (analysis of malpractice mediation sessions) 11
What do our care givers expect? 12
Physicians revile malpractice claims as random events that visit unwarranted expense and emotional pain on competent, hardworking practitioners... Studdert, DM, Mello, MM and Brennan,TA, Health Policy Report: Medical Malpractice N Engl J Med 2004; 350; 283 13
For over a century, American physicians have regarded malpractice suits as unjustified affronts to medical professionalism, and have directed their ire at plaintiffs lawyers... and the legal system in which they operate. Sage, William, Medical Malpractice Insurance and the Emperor s Clothes 54 DePaul Law Review 463, 464 (24 March 2005) 14
How did we get here? Medicine s Faustian bargain... 15
Deny and Defend Time-honored approach to patient injury So, for whom is Deny and Defend actually working? An impressive industry that is invested in the status quo 16
Though patient safety is the ultimate goal (and ultimate risk management strategy), we must necessarily confront claims management demands 17
The Michigan Model Stripped to its essentials, the Michigan model is simple accountability reinforced with some serious calcium 18
Accountability We will compensate quickly and fairly when inappropriate medical care causes injury. We will support our staff vigorously when care involved was reasonable.* We will reduce patient injuries (and claims) by learning from our patients experiences. 19
What does this look like? 20
Published Results Before and After analysis of impact on UMHS claims: Kachalia, Allen, Kaufman, Samuel, R, Boothman, Richard C., et al Liability Claims and Costs Before and After Implementation of a Medical Error Disclosure Program. Ann Intern Med. 2010; 153: 213 221 (2010) For a description of the UMHS program and reasons for it: Boothman, RC, Blackwell, AC, et al A Better Approach to Medical Malpractice Claims? The University of Michigan experience. J Health Life Sci Law. 2009; 2:125-59 For a practical discussion about implementation: Boothman, RC, Imhoff, SJ, Campbell, Jr., DA Nurturing a Culture of Patient Safety and Achieving Lower Malpractice Risk Through Disclosure: Lessons Learned and Future Directions Frontiers of Health Services Management 28:3, Spring 2012 21
U of M Claims Management Chief Risk Officer Assessment and Direction CRO/Risk Management Investigation and Analysis of Risk and Value Before Suit Medical Committee (3 months after notice) Legal Office Assign to Counsel Litigate Agree to Disagree Litigation No Dialogue Engage Patient and Share Information Claims Committee Settle or Trial? Agree no Claim 22
Chief Risk Officer Assessment and Direction CRO/Risk Management Investigation and Analysis of Risk and Value Medical Committee (3 months after notice) Peer Review Clinical Quality Improvement Educational Opportunities 23
What do you need to do it? Backbone Identify the components Early identification of unanticipated outcome Way of determining the difference between medical mistake and reasonable medical care Communication Compensation Learning from experience Measurement Secure the resources 24
Med Mal Benefits Analysis by Allen Kachalia, MD and colleagues and reported in 2010 Annals of Internal Medicine Note: Next three slides were prepared by Dr. Kachalia and used with his permission 25
Avg. Before: 7.03 Avg. After: 4.52 (Difference 36%*) Results - New Claims Per Month New Claims/Month (per 100K patient visits) 0 5 10 15 20 25 Initial Implementation Full Implementation 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 26 *Statistically significant
*Statistically significant Results Total Liability Costs Total Liability Costs/Month per $1000 revenue Before After Difference $18.91 $7.78 59%* 27
Before: 2.26 After: 0.88 (Difference 61%*) Before: 16.64 After: 6.90 (Difference 59% *) Results Mean Liability Costs Legal Costs per Month (per $1000 operating revenue) 0 2 4 6 8 10 12 14 Patient Compensation Costs per Month (per $1000 operating revenue) 0 25 50 75 100 125 Initial Implementation Full Implementation 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 28 *Statistically significant
We are closing claims faster 29
UMHS RISK MANAGEMENT CLAIM INCIDENT TO DISPOSITION DATE 140.0 Incident Date to Disposition Date in Months by FY Linear (Incident Date to Disposition Date in Months by FY) 120.0 100.0 80.0 60.0 40.0 20.0 0.0 2010 1998 1998 1999 1999 1999 2000 2000 2000 2001 2001 2001 2002 2002 2002 2003 2003 2003 2004 2004 2004 2005 2005 2005 2006 2006 2006 2007 2007 2007 2008 2008 2008 2009 2009 2009 2010 30
We are increasingly avoiding litigation without sacrificing our principles (or sacrificing our staff) 31
UMHS RISK MANAGEMENT CLAIM AND SUIT TOTALS PER FY # of Claims by Incident FY # Suits Filed by Incident FY 160 140 120 100 80 60 40 20 0 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 32
Claims numbers have dropped steadily 33
UMHS RISK MANAGEMENT CLAIMS PER QUARTER BY INCIDENT FISCAL YEAR 45 40 35 30 25 20 Total Linear (Total) 15 10 5 0 Q1 Q3 Q1 Q3 Q1 Q3 Q1 Q3 Q1 Q3 Q1 Q3 Q1 Q3 Q1 Q3 Q1 Q3 Q1 Q3 Q1 Q3 Q1 Q3 Q1 Q3 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 34
What is the impact on patient safety? 35
UMHS RISK MANAGEMENT FY CLAIMS BY INCIDENT DATE SETTLEMENT PAID PER SOC SOC MET SOC NOT MET 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 36
What to make of this? We have a clarity few other health systems have We ve weeded out most of the bogus claims We ve avoided litigation and its costs (financial, emotional, lost productivity) BUT, we can t blame greedy lawyers, opportunistic patients, or a broken court system We continue to cause avoidable injuries and put ourselves at risk 37
The Next Frontier in Patient Safety 38
No Whining, No Excuses Focus on two goals: 1. Fix known problems, and 2. Fundamentally focus on putting patients and safety first 39
Evolution of Claims Management 40
Evolution of Claims Management Various ways of skinnin the cat, but need to supply the elements in the form that fits your organization The manner in which patient injuries are addressed will impact more important priorities like institutional safety and culture Lawyers have an obligation to consider the full impact when counseling their clients Dr. Jessica Scott s approach is very promising 41
The truth will set you free. But first, it will piss you off. Gloria Steinem 42
The IACT Program Medical Disclosure and Transparency Jessica S. Scott, MD, JD Director of Healthcare ADR Innovation Carolina Dispute Settlement Services Innovations in Addressing Medical Malpractice Claims Roundtable Discussion American Health Lawyers Association May 15, 2012 43
If 100 people were harmed by medical error. 44
98% of those harmed by medical error never file a lawsuit 45
Only half those who file ever receive any compensation 46
90% of doctors feel patients harmed by medical error should be compensated 47
Doctors feel (are) targeted in the litigation system 48
What do you think? 1. Do Patients get what they need? 2. Do physicians get what they need? 3. Does the health care system learn? 49
The Joint Commission There is in fact a fundamental dissonance between the medical liability system and the patient safety movement. The latter depends on the transparency of information on which to base improvement; the former drives such information underground. Healthcare at a Crossroads: Strategies for Improving the Medical Liability System and Preventing Patient Injury The Joint Commission (white paper) 2005 50
Is there an alternative to our litigation system? 51
Can we come together and discuss the issues face-to-face? 52
The IACT Program Medical Disclosure and Transparency A program under Carolina Dispute Settlement Services, Inc. 501(c)3 non-profit Designing and implementing state-wide and organization based dispute resolution programs for more than a decade 53
IACT Integrated Accountability & Collaborative Transparency Program MISSION STATEMENT: To provide a safe and supportive resolution process that values transparency and early disclosure of medical errors for patients, doctors, and healthcare organizations so that physical, emotional, and financial stress for all parties will be minimized. 54
GOALS: IACT Program To provide an alternative to our current tort litigation system that better meets the needs of: patients for full disclosure, understanding, and in appropriate cases, an apology and compensation physicians to proactively address issues and communicate with their patients in a safe and effective way so that both the physician and patient can gain closure healthcare organizations to learn from errors and near misses to improve systems and processes in healthcare delivery and society to simultaneously increase patient safety and reduce costs. 55
OUR VALUES: IACT Program Core Values We value communication and trust in the doctor-patient relationship We value the commitment to transparency and honesty We value the patient s right to be informed about their care from initial consent to final outcome, whether good or bad We value efforts to address the needs of the 99% of patients not currently compensated for the medical harms they have incurred We value efforts to inform those patients who may or may not have been harmed but still need information about what happened to them when there is an unexpected bad outcome in their care or treatment We value the commitment to improve patient safety through disclosure of errors and near misses We value the commitment to develop healthcare quality metrics to enhance efforts at improving quality of care in our country We value the dedication of the medical community to give the best care possible to the patients they serve and we seek to provide a process that gives providers an opportunity to repair relationships with patients and their families by reducing the emotional burden these providers carry about their patients bad outcomes 56
Leadership Committee Jessica Scott, M.D., J.D. Director Healthcare ADR Innovations, C.D.S.S. Diann Seigle Executive Director, C.D.S.S Judge Ralph Walker Recalled Court of Appeal and Superior Court Judge Douglas Holmes, M.D. ENT Surgeon, Rex and Wake Med Robert Maitland, J.D. Past President Orange County Bar, Maitland Law Firm Jeff Seigle, J.D. Co-Founder Separating Together Collaborative Law Group Tim McNeill, J.D., M.H.A RTP Law/McNeill Law Offices Joann Sumner, MSN, CS, FNP-BC Clinical Psychotherapist, Nurse Practitioner and Nurse Instructor 57
HOSPITAL Assessment Informal Process Patient Safety Officer & Physician Formal Process Assign & Evaluate Neutral Expert Collaborative Attorneys for patient & provider (Hospital/MD) Mediator/Facilitator Coach for Providers In-House Mediation Resolution Collaborative Conference Participation Agreement Disclosure of information Confidentiality Clause Withdrawal Clause Face-to-face participation No Further Action Follow up Needed Further information required Second Collaborative Conference Resolution Signed Agreement Withdrawal of complaint Emotional closure for patients & providers Apology (if appropriate) Preventative measures for future harms Possible compensation to patients for harm Possible follow up services at reduced or no cost (if applicable) Impasse Future Settlement Without Litigation Litigation Learning Opportunities for Improved Quality of Care/Patient Safety Improved awareness of actual errors/near misses as well as potential risks Improved management of risks with better system design Improved work environment (less punitive, greater support & collaboration) Opportunity to establish outcome measures for improved quality of care and reduced costs Increased Patient Satisfaction Improved communication with physicians Greater trust/confidence in hospital/physician Greater transparency & honesty for better patient decision-making Enhanced marketing/pr to community Increased Physician Satisfaction Decreased anxiety about potential lawsuits Increased trust/confidence in organization Improved quality of life/job satisfaction Improved coping with adverse patient outcomes & errors Reduced Costs Reduced malpractice claims, litigation costs & time to resolution of claims Improved health care delivery processes & efficiency Decreased defensive medicine and decrease costs in paying for medical errors Reduced staff turnover due to improved job satisfaction 58
What is a Collaborative Conference? 59
The IACT Program Layers of Protection for Providers 60
Difficult conversations 61
Success of Collaborative Law in other civil contexts (particularly Family Law) Collaborative Law is an established practice area in law for over 25 years 95% Settlement Rate on national level without resort to the court system CDSS brought Collaborative Law to NC in late 1990 s Collaborative Lawyers are settlement experts and cannot litigate the case should it impasse 62
The Joint Commission Several elements are fundamental to any disclosure effort: i. prompt explanation of known facts related to unanticipated outcome ii. iii. iv. probable effects assurance that further analysis will take place follow-up based on analysis to prevent recurrences v. and an apology Healthcare at a Crossroads: Strategies for Improving the Medical Liability System and Preventing Patient Injury The Joint Commission (white paper) 2005 63
The Joint Commission Lack of disclosure and communication is the most prominent complaint of patients, and their families, who together have become victims of medical error or negligence. Years of expensive and wounding litigation often ensue when families are sometimes only seeking answers. Healthcare at a Crossroads: Strategies for Improving the Medical Liability System and Preventing Patient Injury The Joint Commission (white paper) 2005 64
The Joint Commission- Restructuring of Litigation System The goal of any such restructuring should be to reduce litigation by decreasing patient injury, by encouraging open communication and disclosure among patients and providers, and by assuring prompt and fair compensation when safety systems fail. (The Joint Commission) Healthcare at a Crossroads: Strategies for Improving the Medical Liability System and Preventing Patient Injury The Joint Commission (white paper) 2005 65
Pathways Comparison Litigation vs. Collaborative Law Plaintiff files suit Defendant answers Goals & Interests determined interrogatories, RFP s, RFA s depositions, experts, hearings, motions interrogatories, RFP s, RFA s depositions, experts, hearings, motions Information gathered (including expert opinion) Settlement options developed and evaluated Negotiation and Resolution 66
See Testimony of Lawrence E. Smarr 67
68
The Practice of Defensive Medicine 93% of doctors in survey said they practiced defensive medicine (Studdert, JAMA 2005) 90% of doctors who were sued suffered significant mental effects from the lawsuits and 10% contemplated suicide (Journal of the American Academy of Family Physicians) Natural instinct among doctors to take as little risk as possible, hence ordering more studies 69
Impact on the Practice of Defensive Medicine Vast majority of physicians believe: their risk of lawsuit is substantially higher than it is in reality most malpractice claims are not well-founded the present system for resolving claims is unfair Federal and state reporting requirements for reporting to the NPDB and to state medical boards increase fear of litigation in minds of doctors Defensive Medicine and Medical Malpractice OTA (US Congress) 1994 70
IACT Program About Us Video View at www.iactprogram.com or You-Tube search IACT Program 71
Contact Information Jessica S. Scott, MD, JD Jessica@IACTProgram.com Carolina Dispute Settlement Services IACT Program NC Collaborative Law Institute www.iactprogram.com 919-755-4646 72
Questions 73
Innovations in Medical Malpractice Claims, Part II 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 74