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After Tort Reform, Keeping Hospital Care Safe for Patients

Analysis  |  By Tinker Ready  
   November 17, 2016

Communication-and-resolution programs can be tools for preserving patient safety, not just for avoiding litigation.

Hospitals and doctors hardly ever do anything wrong.

At least that's what some risk managers and health care lawyers would have us believe.

Even when doctors or other members of the delivery team know they've messed up, they are usually instructed to keep their mouths shut. An apology, or even the suggestion of error, they are told, is an invitation to a malpractice suit.

That was the old way of thinking about potential medical errors and liability.

An alternative approach, known as CRP for communication-and-resolution programs, offers a different way of thinking about what lawyers see as potential liability and what providers see as potential medical errors.

The CRPs are designed to take the madness out of malpractice, which are commonly long, expensive legal odysseys, whose outcomes are often decided by juries who must weight conflicting and complex medial testimony.

But as the battle again medical errors escalates on the clinical side, some suggest that CRPs can make malpractice less about the law and more about quality of care.

William M. Sage, MD, JD, at the University of Texas at Austin (UT) has been studying these issues for a while. His is lead author of one of a group on papers on malpractice reform and patient safety posted online on November 4 by the journal "Health Services Research."

Ushering Out the Deny-and-Defend Era
Hospitals, he said, need to change the way they look at medical errors and liability.

"I think they need to shift the mindset from, 'this is about defending against lawsuits,' to 'this is about assisting injured patients and the health professional involved,'" he said.

"Going along with that means reevaluating habits that you might have from the deny-and-defend era."

Sage's research looks at the "litigation experience" in Texas following strict tort reform.

The number of closed malpractice claims dropped, but the research found that the patterns in the way claims were resolved reflected "efforts by the university to provide some compensation to injured patients in cases that were no longer economically viable for plaintiffs' lawyers to litigate."

In other words, while there were fewer malpractice claims, a larger percentage of them were being settled without a jury trial. Between 2001 and 2015, the percentage of cases resolved in the courts dropped from 82% to 29%.

Not that the malpractice lawyers went away.

"We did see lawyers involved in approving the settlements, which we think is good and so did UT," he said. "Lawyers make sure that everybody understands what is going on and ensure that the process is fair."

Patients represented by lawyers still did better than those without. So, the study suggests that hospitals that adopt these programs try to address that imbalance.

Another study in same journal looked at CRP in use at five hospitals in New York, a state that, unlike Texas, has approved few tort reforms. The researchers looked at 125 CRP cases involving general surgery. They found that three-quarters of them did not involve substandard care.

The University of Michigan Health System had been one of the champions of the CRP approach. The idea is to identify true error and harm and compensate for it," says system chief risk officer Rick Boothman.

An Obligation to Tell Patients 'What Might Happen'
"If being honest and open about how we assess the claim fails to come to a resolution and litigation is unavoidable, we literally walk it over to the legal office and say, 'Have at it.'"

Boothman has been working to bring the approach to other hospitals. And while some are adopting it, he's starting to hear about hospitals that claim to have adopted CRP, but are really just cherry-picking convenient or inescapable cases," he says.

Hospitals that want to set up successful CRP programs need to promote the idea that it is counterproductive to defend care that no one is proud of.

"It only becomes part and parcel of the organization's identity when it comes to the attention of clinical leadership who believe that the way they treat injured people… is integral to their patient safety culture and their ability to continually improve," Boothman says.

Sage says it comes down to the professional consensus and legal obligations of informed consent. "If you have an obligation to tell a patient what might happen to them, don't you have an obligation to tell them what did happen to them?"

"It's really hard to argue with that," he says.

Tinker Ready is a contributing writer at HealthLeaders Media.

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