Patient harmed? Early compensation might prevent costlier malpractice suit

‘Laying low’ is not best approach

“Good or bad, we are going to be extraordinarily objective and transparent in our review of patient care, to the point that it’s probably going to shock you.” This is the first thing plaintiffs and their attorneys are told when meeting with representatives of Schumacher Group, a Lafayette, LA-based healthcare resource company.

Next, they’re warned that the group expects the same degree of objectivity and transparency in return. “In discussing our review of the care, we do caution that we have and will mount a tough defense if at any point we find we are being taken advantage of,” says Ryan Domengeaux, JD, the group’s vice president of risk management and internal counsel.

“We tell patients or their families, ‘We have carefully reviewed the patient care at issue. Here’s what did well, and here’s what we could have done better,’” he says. “People are sometimes flabbergasted by how candid we are in discussing our review of the care.”

“People have to learn to talk to each other again face to face, and not always through their attorneys or mediators,” says Domengeaux. “We have seen time and time again that face-to-face interaction is a catalyst to resolution and a rewarding experience for all involved.”

The group has had a disclosure and offer program in place for seven years. “We believe strongly in a path to early resolution of any concerns, claims, or adverse events,” says Domengeaux. “Early disclosure, honesty, and empathy are all critical factors in resulting claims quickly, which benefits the patients, their families, and the providers. No party wins by hiding the truth or prolonging resolution through protracted litigation.”

While apologies aren’t necessarily given for the care provided, providers routinely offer sincere apologies for the situation that the patient and family find themselves in. “I have never experienced a candid conversation or an apology being used against us or our providers in any case we’ve ever been involved in,” says Domengeaux. “That is true even when the provider has admitted fault in writing.”

The group’s claims close in an average of 11 months for claims filed out of state and close in an average of 18 months for claims filed in Louisiana, he reports. Schumacher Group has also experienced a decrease in the frequency of claims filed and the severity of claims costs, despite a consistent increase in patients seen annually.

“Statistically, we are closing claims probably two to three times quicker than anyone else is experiencing,” Domengeaux says. “Sure, our practice of managing disputes saves us money. But more importantly, we get to bring some peace and resolution to the patients and their families and the providers much quicker than usually everyone expects.”

Resistance remains

Some plaintiff attorneys won’t allow their client to meet face-to-face with the Schumacher Group and their providers, and they assume the group has ulterior motives. Even their own defense counsel are sometimes skeptical of this approach when first coming on board.

“We knew it would be somewhat of an uphill battle when we instituted this program. Frankly, we are still experiencing some resistance from other codefendants,” Domengeaux acknowledges. “There are still many folks involved in the litigation process that don’t believe in our approach. They just have a tough time believing that ours is the right path to take. Many still believe that discovery and litigation must precede any resolution — that is, until they give our approach a chance and see that results.”

Individual providers or small practice groups might find it harder to take an open, candid approach when dealing with claims, he adds. “They might not have as much latitude as we have. They have to answer to an insurance company, and the majority are not yet at the point where they understand the benefits of early candid and transparent conversations about resolutions,” says Domengeaux.

Malpractice liability carriers might fear that a physician group is setting a bad precedent with early offers or sending a message to plaintiff attorneys that they give in too easily. “I can tell you that we’ve been doing this for seven years, and we have not seen an adverse trend,” Domengeaux says. “It’s quite the opposite. We are receiving less claims than we received before, and others are starting to buy into the process.”

Litigation is often avoided, but not always. “We have had discussions where people have not pursued claims, where we realized that we need to compensate people, and everything in between,” he says. “What our patients and their families really want at the end of the day is an opportunity to be heard, so we give them that with an open mind and heart.”’

Approach spreading rapidly

Disclosure and resolution programs are becoming more the norm than the exception, according to Thomas H. Gallagher, MD, professor of medicine and professor of bioethics and humanities at the University of Washington in Seattle.

“We are seeing this take off on a large scale. This model is spreading rapidly,” he reports. “The evidence is beginning to accumulate that this approach really does make sense.”

After the University of Michigan Health System implemented a disclosure-with-offer program to patients for medical errors in 2001, the average monthly rate of new claims decreased from 7.03 to 4.52 per 100,000 patient encounters, the average monthly rate of lawsuits decreased from 2.13 to 0.75 per 100,000 patient encounters, and median time from claim reporting to resolution decreased from 1.36 to 0.95 years, according to a study that analyzed claims occurring in 1995 to 2007.1

Many existing programs involve large self-insured academic health centers, but even smaller physician groups should be thinking about how they can implement a disclosure and offer program, according to Gallagher. “For a while now, it’s been really clear that the absence of disclosure is something that fuels claims, and makes them more expensive and difficult to settle,” he says.

Malpractice insurers across the country are adopting this approach, Gallagher adds, and some offer real-time coaching in disclosing errors. (For information on training, see resources, below.) There is growing awareness that patients expect disclosure of even minor errors, he says.2,3,4

“We also know that the absence of disclosure makes patients unhappy in the clinical setting, and if it goes to court, leads to higher awards,” Gallagher says. “It makes the jury angry that the doctor and hospital concealed what happened.”

Of the seven demonstration projects sponsored by the Agency for Healthcare Research and Quality in 2012 related to patient safety and medical liability reform, several involve disclosure and resolution. “But what is even more exciting is that the plaintiff attorneys, medical and hospital associations, and malpractice insurers, which typically fought against one another, are recognizing that this is something they can all come behind and support,” says Gallagher.

Physicians need to recognize that reaching out to the patient is much more likely to help the situation than it is to hurt the situation, emphasizes Gallagher. “When something goes wrong, lots of physicians wonder whether the best approach is to sort of lay low and wait until the patient complains or a claim is filed,” he says. “They worry that being proactive might lead to a claim when one wouldn’t have happened in the first place.”

“Laying low” has significant costs not only for the patient, but also the physician, he explains. “It not only makes the patient angry, it also keeps the physician from participating in efforts to understand what happened,” says Gallagher.

References

  1. 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(4):213-221.
  2. Gallagher TH, Waterman AD, Ebers EG, et al. Patients’ and physicians’ attitudes regarding the disclosure of medical errors. JAMA 2003; 289(8):1001-1007.
  3. Mazor KM, Simon SR, Yood RA, et al. Health plan members’ views about disclosure of medical errors. Ann Intern Med 2004; 140(6):409-418.
  4. Mazor KM, Simon SR, Gurwitz JH. Communicating with patients about medical errors: a review of the literature. Arch Intern Med 2004; 164(15):1,690-1,697.

Sources/Resources

For more information on disclosure and offer programs, contact:

  • Ryan Domengeaux, JD, Vice President of Risk Management & Internal Counsel, Schumacher Group, Lafayette, LA. Phone: (337) 354-1255. Fax: (337) 262-7425. Email: ryan_domengeaux@schumacher-group.com.
  • Thomas H. Gallagher, MD, Professor of Medicine/Professor of Bioethics & Humanities, University of Washington, Seattle. Phone: (206) 616-7158. Fax: (206) 616-1895. Email: thomasg@uw.edu.
  • Seattle-based Physicians Insurance is collaborating with healthcare organizations on a demonstration project designed to improve communication, including a Disclosure and Resolution Program. It offers training to its providers in how to disclose errors. For more information, go to http://bit.ly/WaaZHc.
  • An online disclosure training program for physicians and nurses and other front line staff in acute and long-term settings is offered by Sorry Works! The program teaches physicians and nurses how to empathize and stay connected with patients and families post-event without prematurely admitting fault. Cost is determined by the number of healthcare providers taking the class. To participate in a free webinar, send an email to doug@sorryworks.net. For more information, go to http://bit.ly/TLpInk.