A New Role for Quality in Medical Liability Reform

Earlier this month, the Agency for Healthcare Research and Quality (AHRQ) announced it would be spending over $23 million to find potential solutions to the medical liability issue. It became the largest investment in malpractice reform by the federal government in at least 20 years. But is the U.S. ready to consider more ways to use quality-related methods—rather than legal briefs or court dates—to handle medical liability reform?

Eric Thomas, MD, a professor of medicine at the University of Texas (UT) Houston and director of the UT Houston Memorial Hermann Center for Healthcare Quality and Safety, says now is the time to look at alternative liability reforms. "The malpractice system...is pretty worthless in that it does not compensate most patients. The majority of patients who have been injured by negligent care never sue—let alone get compensation for their injury," he says.

When many physicians are sued, it's not because their care was negligent, Thomas adds. "[The current malpractice system] is not designed to make things better. It's not designed to let us learn about what went wrong and to make improvements."

So what can change? Thomas, one of the AHRQ grantees, proposed a three-year project that will review the use of a "disclosure and compensation" model, which aims to inform injured patients and families promptly and make efforts to provide quick compensation.

"What [we're] doing with this project is to not only serve the needs of individual patients through disclosure but to try to take advantage of a patient's experience," he says. The goal will be to see if the patient's observations of what went wrong can be incorporated into the efforts by the hospital to learn what went wrong—and make improvements.

Including the injured party in the entire process of "analyzing and learning" is something that, to his knowledge, hasn't been done before, he says.

Over a three-year period, the project also will work to identify best practices for using disclosure to improve patient safety, and disseminate those best practices to others. "That's something the malpractice system has no intention of doing," he adds.

Tom Gallagher, MD, an associate professor of medicine at the University of Washington, Seattle, has been working for about a decade on issues of communicating with patients when there are problems with the quality of care, he says.

"It's an interesting area because for a long time people assumed that the way we communicate with patients when there are problems in care is primarily a risk management or service recovery issue," says Gallagher, another AHRQ grantee. "But we're learning that the link between disclosure of errors to patients and the quality of care is a much stronger one than people recognize."

One of the new developments in this field is that people are realizing that disclosure and transparency are fundamental aspects of the way high quality patient care is delivered, he says. His AHRQ project will build on this idea—expanding on the notion of communication.

It includes training for healthcare workers across Washington State to not just communicate with patients after an adverse event or error, but also communicate with other workers to prevent adverse events and errors, he says.

The statewide initiative will look at how a large malpractice insurer, physicians, and private hospitals can work together when there has been a medical injury to provide patients with fast and fair compensation, Gallagher says.

It will be a real breakthrough, he adds, to try to extend the work on disclosure and compensation that has been done in some of the large self-insured settings—such as academic medical centers—to the private hospital environment.

In the self-insured setting, the physicians and a hospital have the same malpractice insurer. But, in the case of a private hospital—where the physicians and hospital have different insurers—both bodies can be at odds with one another, Gallagher adds. "It makes it much more difficult to figure out how can we together make a fast, fair offer of compensation to the patient."

While it's important to avoid injuries in healthcare whenever possible, "it really adds insult to injury when we can't provide the patient with a good explanation and an apology," he says. "And then things get even worse if the patient has financial needs as a results of the injuries that we can't meet."

"I think the stakes are really high to get this right," he says.

Another aspect of this process is to realize that communication with the patient can be an important part of improving quality, he adds. If something goes wrong and "you have an open and honest conversation with the patient about what took place, oftentimes the patient will have observed things about the injury that is really helpful information," he says.

Without talking with a patient, important information that could be lost that might be used for preventing other error or adverse events, he says. But they also are learning that when they encourage openness around injuries with patients, it has a spillover effect in the institutions and promotes transparencies in other areas—such as adverse event reporting.

"I think people will start to learn that the link between disclosure and improving the quality is a strong and important one," he says. "It's definitely the right direction we're headed."