Resolving medical liability claims with disclosure, apology and offer

An apology can be a powerful statement that influences how another responds to a perceived wrong. This can be especially true within the context of a doctor-patient relationship. Yet, most physicians have been conditioned to employ a “deny-and-defend” approach to adverse medical outcomes, avoiding apologies because they believe it could imply an admission of guilt or ultimately initiate a lawsuit.

Apology in medicine is neither new or a fringe concept (currently 36 states have laws shielding some expressions of apology from use in court), but the subject reentered the headlines earlier this year when Massachusetts Gov. Deval Patrick signed into law a healthcare cost control bill that centered on a Disclosure, Apology and Offer (DA&O) model for the resolution of medical liability claims. The Massachusetts legislation is predicated on studies that indicate apologies made by a physician for an adverse medical outcome can be a mitigating factor in whether a patient decides to pursue a medical malpractice lawsuit. The new law is arguably the nation’s most comprehensive DA&O legislation to date, enabling the conduct of a DA&O program in different practice environments with different insurance arrangements.

Under the DA&O model, healthcare professionals, hospitals and their professional liability insurers are encouraged to disclose to patients and their families when an adverse outcomes occurs; investigate and explain to the injured party what happened; establish risk management systems intended to prevent the incident from recurring; and, when appropriate, apologize as well as offer fair financial compensation prior to the patient having to resort to legal action. The law does not preclude an injured patient from consulting a medical malpractice attorney, and should the offered compensation be refused, the statement of apology would not be admissible in any court proceedings.

The language contained in the Massachusetts bill was crafted with input from the commonwealth’s medical society and trial bar, and features a pre-litigation, six-month resolution period that affords the time to share all pertinent medical records with the patient and full disclosure by providers. During this time, medical professionals have the opportunity to apologize to patients without fear that their statements will be used against them.

While the Massachusetts DA&O model for the resolution of medical liability claims is in its fledgling phase, the University of Michigan Health Systems (UMHS) has employed a similar model since 2001, and hard data is available for judging its efficacy.

Under the UMHS model, when confronted by a claim, the system’s claims management response involves:

1. Compensate quickly and fairly when unreasonable medical care causes injury;

2. Defend medically reasonable care aggressively; and

3. Reduce future patient injuries by learning from the adverse patient outcomes.

At the heart of this approach is distinguishing between reasonable and unreasonable medical care. To do so, UMHS staffed its claims management department with experienced nurses—who understand the medical issues involved as well as the realities of delivering care—to sort events as medical errors or not. A 22-member committee of medical caregivers, administrators, outside experts and a hospital attorney then reviews their recommendations. Once a determination is made on the reasonableness of the medical care provided, the injured patient is invited to discuss the issues involved in his or her adverse outcome. Expert opinions are exchanged, and the patient and physician come to an agreement on whether or not the claim should be dropped, a settlement offer with an apology should be made or both parties should proceed to court. This has been described as being similar to the “informed consent” process, where both parties understand the facts and emotions involved in the case should they choose litigation.

The results have been nothing short of striking. According to statistics provided by UMHS, the backlog of open claims declined from 262 in 2001 to 83 in 2009; annual filings of medical liability claims decreased from 121 to 61; annual litigation costs were cut by $2 million a year; the average time to resolve a claim decreased from 20 months to eight; costs per claim decreased by 50 percent; and the level of insurance reserves required by the health system’s self-insurance vehicle decreased by two-thirds.

Perhaps most surprising, both physicians and trial attorneys have warmly received the UMHS DA&O model. According to a survey of its faculty physicians, 98 percent fully approved of the new model, and 55 cited the program as a significant factor in their decision to stay at UMHS. A survey of medical malpractice trial lawyers in Michigan ranked UMHS as “the best” or “among the best” health systems for transparency, and 57 percent reported not pursuing cases that they would have pursued prior to implementation of the DA&O program.

What’s your opinion on apology in medicine? Would you like to see a program similar to the UMHS model implemented at the hospitals where you have privileges? Should the Massachusetts legislation serve as a model for tort reforms at the federal level?

Michael Matray is the editor of Medical Liability Monitor.

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