The “communication-and-resolution” approach after an adverse event has been shown to reduce malpractice costs, but some critics say it can unfairly manipulate the patient and family. Lower malpractice costs should be only one goal of the approach.
- Some say the patient always should be encouraged to retain an attorney before any significant discussions.
- Adhering to the original method of apologizing might eliminate the risk of unfair manipulation.
- It might be acceptable for hospitals to settle directly with patients rather than through a lawyer.
Risk managers have largely embraced the idea of apologizing after an adverse event and communicating fully with the patient or family members, in no small part because this approach has been proven to reduce malpractice costs. In addition, it just seems the right thing to do and promotes a positive image of the hospital.
But can this well-intentioned theory go wrong? Can potential plaintiffs be unfairly manipulated by savvy hospital leaders and attorneys who know how to influence them to the hospital’s advantage?
It happens, says Steve S. Kraman, MD, a professor of internal medicine at the University of Kentucky College of Medicine in Lexington. He is an outspoken critic of what he says has too often become a crass maneuver to save the hospital money by denying people the compensation that they rightly deserve after an adverse event.
Kraman instituted one of the first formal apology programs, sometimes known as “communication and resolution,” in 1987 when he was chief of staff at the Veterans Affairs hospital in Lexington. That program helped spur the nationwide “Sorry Works” campaign that encouraged all hospitals to adopt the same approach of acknowledging the adverse event quickly, communicating fully with the patient or family, and apologizing when appropriate. (For more on the “Sorry Works” approach, see Healthcare Risk Management, October 2011)
The program significantly lowered the malpractice costs of the VA hospital. From 1990 to 1996, Kraman’s VA hospital had 88 claims and paid an average $15,622 per claim, compared with a $98,000 average at VA hospitals without “I’m sorry” policies. That result got the attention of hospital leaders and helped spread the program to many other health systems. However, those cost savings were never the real intent of the program, Kraman says, and that’s where hospital leaders can go wrong.
Theory watered down
Kraman’s approach over 16 years at the VA hospital was to investigate the adverse event before talking to the patient or family, and then tell them everything. The emphasis was on full disclosure of whatever happened and how the hospital or clinicians might have erred.
“But at the same time, and we did this from the very beginning, we advised them always to hire an attorney,” Kraman says. “Even though we had every intention of doing well by them, there was clearly such an imbalance of power that we didn’t think it was fair for them not to have an attorney.”
Kraman’s practice was to suggest an attorney at the point when it was necessary to discuss compensation, not in the first conversations to explain what happened. Over the years, the original approach has been watered down to a more simplistic idea that if you talk to the potential plaintiffs and appear contrite, they won’t sue you, he says. That approach can lead to the false idea that suggesting an attorney runs counter to what you’re trying to achieve.
Saving money is not the point, Kraman says. Rather, the goal is to resolve the problem fairly and as quickly as possible, while avoiding litigation. Saving money almost certainly will be a side benefit, but it is not the primary goal. That wording might be a fine distinction, but it matters in how the policy is executed, he says.
“There are facilities out there that are using this as a strategy to save money: ‘Say you’re sorry, pay some money, and they’ll go away,’” Kraman says. “Patients become very malleable when you treat them this way, and someone who doesn’t have a lot of professional morals can take advantage of people. They’re taking unfair advantage of the way people’s lack of knowledge and goodwill can lead them to bad decisions.”
In his experience at the VA, Kraman saw cases in which the patient was so impressed by the apology that they wouldn’t take compensation that they were rightly due for their injuries. Hospital attorneys had to explain to them that they were not hurting anyone’s feelings and persuade them to accept compensation, Kraman says.
Lawyer not needed?
Poor execution of the approach can indeed lead to taking advantage of vulnerable people, says Richard C. Boothman, JD, chief risk officer and executive director of clinical safety at the University of Michigan Health System (UMHS) in Ann Arbor, which Kraman cites as an example of a health system that handles communication and resolution properly. The University of Michigan Health System has encouraged doctors since 2002 to apologize for mistakes. In the next two years the system’s annual attorney fees have dropped from $3 million to $1 million, and malpractice lawsuits and notices of intent to sue fell from 262 filed to about 130 per year, Boothman reports. (More information on the UMHS model and results is available online at http://tinyurl.com/pdycc8n.)
Taking advantage of people would be “completely counterproductive to our goals,” Boothman says. UMHS has even compensated people who could not sue because the statute of limitations had run out, he says.
“It is so important for us to demonstrate to our staff that accountability for medical injuries due to errors is a priority,” Boothman says. “Cheating someone just because we could is completely anathema to what we are trying to do. The goal for us from day one has not been to save money on malpractice but to establish accountability for preventable medical errors.”
Boothman, a former trial attorney himself, agrees that patients and family should be encouraged to obtain a lawyer, and UMHS insists on representation if a minor is involved or the case involves substantial compensation. Boothman keeps a list of law firms with which UMHS has worked constructively and recommends them to any patient or family seeking counsel, but he says there are situations in which it is reasonable for the patient or family to forgo an attorney.
“Those who say we must always have a lawyer present are disrespectful of patients who are smart enough to say they don’t want to give up a third of their settlement to a lawyer,” Boothman says. “It’s also a cynical view of the world to say we have to read Miranda rights to everybody before we can maintain the patient/physician relationship and come to a resolution with someone who’s been hurt.”
Let lawyers do paperwork
Kraman is less willing to accept a patient or family’s refusal to get a lawyer. Though he has settled with patients who declined to obtain an attorney, Kraman says those situations always made him uneasy.
“Patients are not on an equal playing field,” he says. “The hospitals, the doctors, the insurers all have more knowledge and resources. They also have the ability to predict future needs the patient may not be aware of, or to withhold that information. The hospitals and attorneys may be completely trustworthy and trying to do the right thing, but they have split allegiances, and the patient is not their client.”
In that situation, a patient might walk away feeling like he or she received a good settlement, but the patient might realize years later that it is not adequate to cover disabilities and medical costs, Kraman says. In addition, he notes that hospital attorneys usually find it more productive to negotiate terms with another attorney.
Encouraging a patient or family member to seek a lawyer should be handled carefully, says Rodney K. Adams, JD, an attorney with the law firm of LeClair Ryan in Richmond, VA. There is a risk of polarizing the situation more than necessary if you convey that the hospital’s actions were so egregious that lawyers are needed to sort it out and protect the patient’s rights, he says. A more deft approach would be to explain that legal representation is advised even when the two parties are amicable and willing to reach a fair resolution, he says. The message should be that even in a good settlement, lawyers are necessary to handle the legal details and paperwork, he says.
“In those situations, adding a lawyer to the mix doesn’t have to create a more contentious environment or result in more liability for the hospital,” he says. “It will, however, have everyone walking away more satisfied that everyone’s rights were protected.”