The Not-So-Simple Truth
By Charlotte Huff
Disclosing errors might ease malpractice pain--and it's the right thing to do, advocates say
For Skip Campbell, M.D., it was a gut-check moment. A young girl had died at Ann Arbor's University of Michigan Health System following a medication error. As the system's chief of staff, Campbell sat down with the girl's family to discuss how the error--a narcotics overdose--occurred. Because the girl's parents were divorced and remarried, two couples were present in the room. "And they said," Campbell recalls, "'Doctor, do you mind if we turn on a tape recorder?'"
In the past, the sight of that running tape might have squelched further conversation. But Campbell is one of the architects of a policy, implemented in 2001, that requires clinicians to disclose unanticipated outcomes--both internally and with patients. Although a lawyer wasn't present that day, Campbell knew that the health system backed his candor. (Campbell was not directly involved with the error, but was present in his role as chief of staff.) "That's a tremendous weight off your shoulders, knowing that the lawyer is not going to come down on you," he says.
Amid today's litigious environment, it's difficult to imagine a scenario in which exposing a medical facility's errors could present more than a recipe for self-annihilation. Despite a growing cadre of states with medical error reporting laws--23 states at last count, according to Health Policy Tracking Service, Falls Church, Va.--some hospital executives remain skittish. A study published in March in JAMA, the Journal of the American Medical Association, found that only half of 146 top administrators in four states with mandatory error reporting systems agreed that states should release the details to patients.
And there are reasons to be fearful. Even disclosure advocates concede that long-term liability exposure is unknown. Moreover, a clinician's apology could provide courtroom fodder. Just 15 to 20 states have laws barring physician apologies or condolences from being used against them, according to the Sorry Works! Coalition, a recently formed Glen Carbon, Ill., group that advocates for voluntary disclosure as a strategy to ease the medical malpractice crisis.
Add to those litigation worries the reluctance to admit fault, particularly in a perfectionist-driven culture such as health care. "We all conspire together to reassure people that we will fix everything," says Albert Wu, M.D., a professor at the Johns Hopkins Bloomberg School of Public Health, Baltimore, who helped develop a disclosure policy at the Johns Hopkins Hospital.
But officials at institutions like Johns Hopkins and the University of Michigan Health System maintain that disclosing medical errors to patients, or their survivors, helps identify and fix recurring errors quickly, as well as boosting patient trust and community credibility. The primary goal is to do right by patients and their families, Campbell stresses. Being upfront, he adds, carries the added bonus of letting out some of that litigious air. "My feeling is you may very well get sued anyway, but it's easier to settle," he says. "The vindictiveness gets taken out to some degree."
Initial results are encouraging. The number of pending pre-suit claims and lawsuits at the Michigan health system dropped from 260 in July 2001 to about 140 three years later. And the average legal expense per case--fees, settlements and judgments combined--declined from roughly $60,000 in the late 1990s to about $35,000 in recent years.
Officials at the Veterans Affairs Medical Center in Lexington, Ky., a disclosure pioneer, also report that transparency has not opened the legal floodgates. The facility's liability payments have remained moderate compared with similarly-sized VA facilities in the nearly 15 years since implementation, says Ginny Hamm, a staff attorney in the office of regional counsel.
Still, many institutions are in a wait-and-see mode, says Liz Summy, executive director of the American Society for Healthcare Risk Management. After all, in some states saying "I'm sorry" is effectively admitting fault. "There is a legal umbrella that has influenced how far and how quickly organizations are willing to go on disclosure," she says. "What's evolving is [that] organizations are testing how far they can go."
Talking versus Litigating
Lexington's VA Medical Center adopted its approach when officials were faced with an ethical quandary. The facility had lost two malpractice cases in the late 1980s, in part because of inadequately prepared defenses, with a total payout in excess of $1.5 million. Officials decided to become more aggressive about gathering information in preparation for potential malpractice cases, Hamm says.
Running a better defense also unearthed more potential errors, she says. VA officials encountered a situation in which a woman died after her medication was not discontinued as her clinicians had directed. "We could have easily not done anything, because she had two daughters, and they were estranged," Hamm says. Instead, medical center staff located the daughters and asked them to come in to discuss the incident. Now, the facility aggressively investigates potential errors and sits down with families whenever a mea culpa is required. "We've driven to eastern Kentucky," Hamm says. "We've done disclosures in coffee shops, living rooms."
To what extent adverse medical events are being routinely disclosed remains unclear. Michigan Health System officials emphasize that they were disclosing errors prior to their written policy. The Joint Commission on Accreditation of Healthcare Organizations in 2001 began requiring hospitals to tell patients or their families about any unanticipated occurrences that resulted in a sentinel event.
Medical reporting laws also are proliferating. Pennsylvania passed a law in 2002 requiring hospitals to report adverse events to a state agency and notify the patient or family in writing. But hospitals were discussing errors with patients prior to the law, says Melissa Speck, director of policy development at the Hospital & Healthsystem Association of Pennsylvania. Even so, she says, "I think [the law] has helped not only with the number of disclosures, but also the details and conversations taking place."
Stunted communication can have a whiplash effect--all the way to the courtroom. A frequently cited 1992 JAMA study found that physician communication played a significant role in the decision to sue after an infant's injury or death. One-third of the families--all of whom had filed lawsuits--felt that their physician did not talk openly. Forty-eight percent said physicians attempted to mislead them.
But honesty carries its own price tag. In a 1999 article about their experience, officials at Lexington's VA Medical Center cited five settlements that probably would never have resulted in a claim without voluntary disclosure.
Experience shows, however, that compensation is often low on the list of a patient's or family's needs, says Carole Houk, an attorney and conflict management consultant in Alexandria, Va. Her firm has worked with 28 medical centers since 2001, helping them to develop on-site mediation programs. More than 90 percent of the nearly 4,000 cases--all of which involve some type of unexpected adverse outcome--have been resolved. The details can range from providing more information to apologies to payments. Legal claims have been filed in fewer than 2 percent of cases; none of those cases has reached court yet.
And when a check is cut, it's usually relatively small--generally under $5,000, Houk says. People have an enormous capacity for forgiveness as long as they feel like they've been dealt with fairly, she says.
Connie Johnson, R.N., clinical nurse analyst and patient safety coordinator at Lexington's VA Medical Center, agrees with Houk. "The majority of patients want to know what happened and what went wrong and that someone else's family isn't going to have the same experience," Johnson says. "They don't want $10 million."
Protecting Patients and Clinicians
Handling disclosure is understandably delicate, says Geri Amori, a director at the Risk Management and Patient Safety Institute in Lansing, Mich. Clinicians should prepare themselves before walking into the room, first deciding what they'll say and mentally preparing for any emotional outbursts.
"If you don't say it right, you are going to have a hard time making a connection with the patient or the family," Amori says. "It's not what you say, it's how you say it."
At SSM Health Care of Wisconsin in Madison, clinicians gather for a predisclosure meeting to review the unanticipated adverse event and discuss what information will be presented to the patient or family, says Monica Berry, the regional director of risk management at the not-for-profit system. If an investigation is ongoing, participants are advised not to speculate.
Rick Boothman, University of Michigan Health System's chief risk officer, says his facility takes a similar approach, keeping in touch with the family but waiting for all of the facts to come in.
Houk agrees that it's important not to speculate, but says that hospital officials should share what clinical details they can, rather than leave the patient or family hanging. "They want information as you know it," she says.
And who should do the talking? Again, the approaches differ. Lexington's VA Medical Center usually turns to the chief of staff, Hamm says. As a teaching facility with residents, care can involve several clinicians. Plus, she adds: "You are putting providers in a mighty delicate situation when you are sitting them across from the family."
Berry prefers that an attending physician do the talking, if he or she has the necessary communication savvy. She avoids packing the room with "too many suits," which can intimidate the family. However, she makes sure there is at least one other staff person in the room. "If the patient's family backs the speaker into a corner, demanding, 'Who did this--give us a name!' that person can get the speaker out of the corner and give [him or her] a chance to recover," she says.
Above all, a hospital's clinicians must be reassured that there won't be a witchhunt if they report a potential medical error, says Johns Hopkins' Wu. The Johns Hopkins Hospital policy states that reporting a medical error won't result in punitive action, except when mandated by law or regulations.
The biggest hurdle is more psychological than logistical, Wu says. "People have to accept that errors are inevitable in the practice of medicine. If you are very sick, it's almost guaranteed that there is something that will go wrong in your care almost daily. Those things don't usually hurt you, and they are adjusted for all of the time. Patients need to realize it. And health care workers need to realize it."
Addressing a Tragedy
In the case of the University of Michigan Health System, the young girl's family did eventually hire an attorney known locally for being particularly aggressive, Boothman says.
Hospitals in Michigan benefit from a six-month "cooling-off" period, providing both sides some time to negotiate before going to court. Early on, Boothman placed a call to the attorney. "His first comment to me was, 'If you are not prepared to pay $7 million, I'm not going to talk to you.'"
During the succeeding months, the health system hired an independent mediator and a financial planner. When the mediated discussion took place, the health system again apologized and offered a package totaling a little more than $1 million, which included health insurance, paying off the family's mortgage and establishing college funds for the remaining children.
"We did not try to compensate this mother for the life of her daughter," Boothman says. "We operated on this theme: 'This is a tragedy that's not defensible. Let's see what good can come from this tragedy.'"
The attorney, Boothman recalls, "was so angry when the mom signed off on the settlement that he was literally shouting at her. As she was signing off on it, she said to him, 'Don't compound the tragedy of my daughter's death. These people are trying to do what's right. And I'm satisfied that my family will be taken care of.'"
Charlotte Huff is a freelance writer based in Fort Worth, Texas. This article originally appeared in the August 2005 issue of H&HN magazine.
This article 1st appeared in the December 2099 issue of Trustee Magazine.
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