Considering signs of financial uncertainty in liability insurance markets, it is an excellent time for EDs to study communication and resolution programs as an alternative to malpractice litigation, the authors of a recent paper argued.1 “We wrote this paper to encourage the medical community, and the insurance industry that serves it, to see the challenges of a hardening insurance market differently this time around,” says Richard C. Boothman, CEO of Boothman Consulting Group.
A growing number of hospitals, including EDs, have implemented communication and resolution programs (CRPs). The law is slowly evolving to support these alternative approaches. So far, 39 states have instituted some form of apology law.2 These apology laws are “creating a fertile environment for communication and resolution programs to be adopted,” says Michelle M. Mello, JD, PhD, a professor of law and medicine at Stanford. Apology laws “do tend to have some reassurance value for physicians, which might help them be a bit more candid with patients,” she adds.
When things go wrong in any healthcare setting, including the ED, “there are better ways than adversarial litigation to care for patients, ways that also help prevent harm to future patients,” says William M. Sage, MD, JD, chair for faculty excellence at the University of Texas at Austin School of Law.
In the post-COVID-19 pandemic period, the financial uncertainty in liability insurance markets “might grow into a full-fledged crisis of the sort not seen in nearly two decades,” Sage observes. “We wanted to talk about possibilities, such as communication and resolution programs, before people are too panicked to consider them.”1
In emergency medicine, as in all healthcare fields, “openness, compassion, and engagement are essential aspects of liability prevention,” Sage continues. “This is the right time to implement systems of error response that emphasize them.”
Boothman is frustrated by the slow pace of adoption. “Lawyers have been serious impediments to the spread of CRPs for various reasons. But it’s finally dawning on the legal profession that they need to know about CRPs and get involved,” says Boothman, a visiting scholar at the Vanderbilt University Medical School Center for Patient and Professional Advocacy.
These programs also have been proven to reduce claims; shorten the time for claims to be resolved; and decrease total liability, patient compensation, and non-compensation-related legal costs.3 “We reached this conclusion more than a decade ago, and still, authentic spread of this approach remains slow and incomplete,” Boothman laments.
Historically, tort reforms have been the response to hardening professional liability insurance markets. “These reforms, in one form or another, simply make malpractice claims harder to bring or less lucrative or both,” Boothman says.
For emergency medicine in particular, tort reform involved attempts to immunize providers delivering emergency care. Boothman says these efforts are counterproductive. “They would shelter shoddy practices, invite dangerous practitioners, and lead to greater patient harm,” he argues.
EPs do face some unique challenges in terms of malpractice risks. “They see patients in isolated vignettes of their patients’ lives and patients’ illnesses,” Boothman offers. “EPs diagnose, treat, counsel, and refer around illnesses that are often not clear at the time of presentation.”
Communication and resolution programs can help reduce risks for both EPs and their patients. “The best thing we can do to help our caregivers realize their own professional goals is to create a culture that stimulates learning and improvement,” Boothman says.
- Sage WM, Boothman RC, Gallagher TH. Another medical malpractice crisis? Try something different. JAMA 2020; Sep 17. doi: 10.1001/jama.2020.16557. [Online ahead of print].
- Fields AC, Mello MM, Kachalia A. Apology laws and malpractice liability: What have we learned? BMJ Qual Saf 2021;30:64-67.
- Kachalia A, Kaufman SR, Boothman R, et al. Liability claims and costs before and after implementation of a medical error disclosure program. Ann Intern Med 2010;153:213-221.