Med Mal Malady? Liability Reform Demonstration Projects May Be the Cure

When it comes to medical liability reform, viewpoints are frequently at opposite ends of the spectrum.  States may feel that trying to bring together parties with seemingly divergent interests is not within their realm or wonder what role they can play in this discussion.  At NASHP’s 24^thAnnual State Health Policy Conference in October, three speakers who are part of AHRQ-funded medical liability reform demonstration projects shared how they got parties to the table and how frequent foes often have common interests and objectives.  They also discussed why medical liability reform is a state issue and what states can do beyond their traditional roles as regulators. The projects – in Illinois, New York, and Texas – are using three different approaches to liability reform.
Piloting the “Disclosure Movement” Bandwagon  Tim McDonald, a physician-attorney at the University of Illinois at Chicago (UIC), helped to create that hospital’s Seven Pillars approach,which started in 2006.  This comprehensive model enabled UIC to move beyond the “deny and defend” mentality that many hospitals take when an error that compromises patient safety occurs.  Instead, UIC rapidly discloses errors when they take place.  Dr. McDonald said that the approach at first seems contrary to human nature and at odds with most defense lawyers’ strategy.  But UIC got buy-in from legal counsel and implemented a thorough provider education program.  If an error occurs, the patient and family have ongoing communication with the hospital and physician.  The hospital freezes bills and may provide immediate monetary assistance to the patient for things like lost wages.  It may also make an early offer of compensation if at fault.   Since implementing this program, the number of malpractice lawsuits has dropped 40 percent.  The demonstration project, which Dr. McDonald leads, seeks to expand this model to other hospitals both in and outside of Illinois.
Janet Cohn, an attorney with New York State’s grant, spoke about the state’s project, which brings together the Department of Health, judiciary, and five academic hospitals to improve patient safety, implement a communication and resolution program, and expand a judge-directed negotiation program.  The project aims to improve the system from delivery of care to lawsuit settlement or judgment, if the patient ultimately files suit. Hospitals first try to reduce preventable errors by analyzing adverse events and through enhanced patient safety initiatives.  If an error occurs, the model calls for disclosure and settlement, if applicable.  Hospitals refer cases that are not resolved to the negotiation program.  Participating judges, who have medical and enhanced negotiation training, are assigned cases as soon as lawsuits are filed and maintain the same cases throughout the duration of proceedings.  Judges encourage settlement through frequent negotiation meetings, with the goal of not letting cases linger in the judicial system.  Changing the way we think about patient safety involves looking in the mirror, Ms. Cohn noted.  Key barriers include the belief among hospitals and providers that current patient safety measures are sufficient and that only a few “bad apples” cause the majority of preventable errors, when many errors are actually systems or process errors.
Bill Sage, also a physician-attorney, explained the University of Texas’ (UT) early disclosure and compensation model.  Like the UIC and New York projects, Dr. Sage said that the UT health system is joining what he dubbed the “Disclosure Movement.”  The UT project includes an early disclosure and compensation model where patients are promptly notified of errors and offered compensation if appropriate.  In addition to implementing the model, the UT project will also study its effectiveness and will develop best practices.
In addition to a common framework of early disclosure and compensation, the three speakers all stressed the importance of communication—not just between patient and provider, but also within institutions, to promote a culture of patient safety.
States’ Roles in Blazing a Trail  All three speakers felt strongly that states have a critical role to play in supporting patient safety and liability reform.  Regardless of whether states take the reins by leading through legislation and organizing pilot projects or take a back seat and provide support and advice, there is a seat for them on the liability reform bandwagon.
What are the roadblocks?  All three speakers commented that states’ roles in provider licensing and mandatory reporting of actions to the National Practitioner Data Bank, which collects data on settlements, judgments, and adverse license action can be a barrier to dialogue.  However, it also makes it difficult for providers to see states as possible partners.  Short of changes to the data bank and state and federal reporting laws, Ms. Cohn said that gaining trust takes time but can be done, especially when the state is sincere in its actions.
Dr. Sage questioned where medical liability fits within the tort reform and patient safety discussions. States have a unique ability to bridge the physician-attorney gap.  For instance, the New York project cuts across branches of government and involves the judiciary, which is not one of the usual suspects.
Presenters suggested that states examine their laws to ensure that they aren’t hampering any early disclosure models.  For example, while laws making provider apologies inadmissible in court proceedings to show culpability may appear to protect the provider, hearing such statements at trial may also make a provider look sympathetic and human.  Patient safety laws should also promote patient safety without highlighting the state’s regulatory and disciplinary functions to the point that states cannot collaborate with providers on reforms.  Thus, laws deserve careful analysis.
Finally, Dr. Sage had a novel suggestion, as also noted in his recent Health Affairs blog post.  If providers want malpractice reform such as caps on non-economic damages, they should be willing to give the state something in return, such as meaningful payment reform.
Is an AHRQ demonstration or other medical liability reform program operating in your state?  Hasyour state convened key partners to reduce medical errors and improve dispute resolution?  Visit State Refor(u)m’s discussion page to join the conversation.