Michigan system's approach to medical errors

Previous approach was to settle

When the University of Michigan Health System's chief risk officer arrived in 2001, he had already mapped out to institutional leaders an architecture for risk management and medical error disclosure that would dramatically change the system's liability expenses, as well as its approach to patient safety.

Based on 20-plus years as a trial lawyer in the health care arena, representing such institutions as the Cleveland Clinic and the Henry Ford Hospital in Detroit, he thought he had developed a fix to the medical malpractice problem. And the hospital leaders brought him on board to implement the solution he developed.

Upon his arrival, the health system's culture surrounding claims "was pretty consistent with almost all my other clients," says Richard C. Boothman, JD, who has been at the system almost a decade now. "Any claim, for the most part — any patient injury — would not be addressed in a proactive way. The health system would wait until a claim was asserted; those claims would be referred to trial lawyers like me. We would spend a lot of time and a lot of money investigating the cases and preparing a defense as best we could. And in almost all cases, the health system eventually would settle those cases. And it always seemed to me to be the dumbest of all approaches, because you would incur your own costs; you would drag your staff through sometimes a couple of years of litigation, or at least preparation for the trial," Boothman explains.

The patient and the patient's attorney would incur costs, which Boothman says would only increase the "price of the settling." Because it is a risk-averse institution, the system would still almost always settle.

In the four years prior to Boothman's arrival, the institution tried only one case.

"It was frustrating from a trial lawyer's perspective, because I would get some of the classiest defendants . . . the University of Michigan would open doors to some of the best experts in the world — and yet we would settle almost all the cases," he notes. "So, it was frustrating that way."

Boothman describes the mood among medical staff as "a little split personality-ish." Most of them were "complacent" about lawsuits, because they believed that they would always be settled, a fact he calls "comforting to them."

"On the other hand, it was not unusual for doctors to say things in the hallways, such as 'The university settled this out from under me; I really didn't do anything wrong,''' he recalls. "And so I felt, as a trial lawyer who was well connected with the university that the atmosphere here was not very constructive — not a team approach at all."

The more important observation, he notes, was that in all his years of being a trial lawyer "literally not a single hospital ever asked me what they should have learned from the cases I handled."

Boothman says that the few times he did raise the issue of learning from bad experiences, "it was clear that I was raising something not even on their radar screen."

This "disconnect" was, he decided, the primary problem with the medical malpractice issue.

"If you play out in your mind the scenario that you've got an injured patient who appears at the door of a hospital CEO, or the head of a faculty group practice — and says, 'You injured me — now what?'" The institutional response traditionally has been to refer patients to insurance companies, "and by proxy, lawyers, as the only response," Boothman says.

As a result, that community "got exactly what it bargained for — an adversarial environment. So, that patients have come to believe that they're not going to get a fair shake and an honest answer. They're searching most of the time just to understand what happened to them. And the hospital administration becomes very readily disconnected from those problems, because the insurance burden, the premium of malpractice insurance, becomes a line item on their budget, and as far as they're concerned, they've taken care of it," Boothman says.

[Editor's note: See the April issue of Medical Ethics Advisor to learn about the specifics of the University of Michigan Health System's "honest, principled" approach to disclosure and how that feeds into patient safety and quality care initiatives.]