Attorney: Openness can actually reduce lawsuits

Attorney: Openness can actually reduce lawsuits

Less likely to sue even after bad outcome

A former trial attorney who has represented hospitals in numerous malpractice claims seems the unlikely source of a call for transparency and full disclosure with regard to nosocomial infections and other adverse patient outcomes. But that's just what Richard Boothman, JD, chief risk officer at the University of Michigan Health System in Ann Arbor, recently did in Baltimore at the annual meeting of the Society for Healthcare Epidemiology of America (SHEA).

"The change at the university really started with a change in attitude," he said. "We focused first on patient safety. The truth is it is not about claims at all, it is about patient safety. If we focus on patient safety and [open] communications, the claims will handle themselves. And I think we are seeing that."

If patients are treated with openness and honesty and fully informed about the risks of their medical care, they are less likely to sue even if they have a bad outcome, he stressed. Yet the historical hospital tendency to "deny and defend" creates a combative atmosphere that makes showdowns in the courtroom more likely.

"Our claims process must mirror what goes on ethically in the hospital," he said. "We [say we are] committed to patient safety, openness, and honesty but when it comes to a potential lawsuit, [the message is] 'don't talk to anybody.' Why is that? Does anybody see a disconnect there? I do. If we are committed to these principles [of transparency] then what I say to a patient before a suit is no different than what I am going to say in a courtroom later."

Deal fairly with pts, still fight for clinicians

Boothman said his policy is to compensate quickly and fairly for inappropriate medical care, but defend clinicians who acted reasonably but still had a bad outcome. "We will defend them vigorously with the best of lawyers and experts, but not first without trying to persuade the patient otherwise," he said.

In such cases, Boothman conducts an internal investigation, stays connected to the patient, and promises full disclosure. "Be culturally consistent," he told SHEA attendees. "Your lawyers should get the same message as your doctors. If you are going to be open and honest, you should be honest both in the court room and the hospital room."

The approach has reduced claims at lawsuits considerably since Boothman arrived in 2001, freeing up millions of dollars that were previously held back in anticipation of patient litigation. The medical staff have bought into the program, which was essential if it were to be a success, he said.

"The effort is a holistic one," he said. "This is not 'apologize and you'll get a better settlement.' This is not a claims strategy. It is a start to finish change the patient experience."

Before he started the program, the hospital had 262 claims open for possible action, with a reserve of $72 million held back to deal with them as needed. "There was absolutely no systematic link between our patient injury or medical mistakes and staff education, peer review or quality improvement," Boothman said. "We were principled, but our principles were not consistently applied. Most of the time we did what most hospitals do — lapsed into deny and defend, which is really the most counterproductive way I can think of to handle these things. And as a institution, we were very risk-adverse so it was frustrating for me as a trial lawyer — even in cases where I was convinced we didn't make a mistake — we usually settled claims anyway."

Claims drop dramatically

Under the new philosophy of transparency, claims have dramatically dropped even though clinical activity has increased by some 20% over the time period. "We have a more proactive approach to risk management and are identifying and collecting more cases then ever before they even get to lawyers," Boothman said. "We are down to 88 total claims for the institution. This is an intuition that is pushing 2 million clinic visits and more than 220,000 emergency room visits a year. Every one of those is an opportunity for a mistake and a claim."

As a result of reduced claims, the insurance reserves fund has fallen to $15 million, freeing up millions for patient safety efforts and clinical improvements. Skeptics thought the transparency approach would increase claims when he began the program, Boothman recalled.

"Transparency has not been the calamity that most people have forecast every time you hear someone talk about being open and honest with patients," he said. "To understand what is happening at the University of Michigan, you have to understand what drives people to see lawyers in the first place. That understanding makes all the difference."

Patients that seek redress against a hospital typically complain that they never received an explanation for their outcome, let alone an apology. Many feel they must sue to protect other patients from the same fate in the future.

"I have cross-examined probably over 2,000 people who chose to sue their doctors and hospitals and most of them [said they] felt an enormous sense of responsibility that what happened to them wouldn't happen to somebody else," he said. "We have to deal with that. Health care practitioners get sued far more often because we have made an inadequate commitment to patient safety and because we don't treat our patients very well than because somebody persuaded a happy patient to see a lawyer."

Clinicians set themselves up for lawsuits by promising amazing results and minimizing risks, he added. "Why can't we say something like this, 'I am not going to kid you, Mrs. Jones. The percentage chance that you will have a serious problem is low, but if it happens to you it's 100%. Some of these complications could seriously alter your life, and you should carefully consider them including the risk of doing nothing. There is no guarantee. There is not even a guarantee that I will not make a mistake. All I can promise you is that I will do my best. Do you have any questions?' What is it that prevents us from talking to people like this? If we handle it up front, you would be surprised at how forgiving patients really are."