Roadmap for TransformingMedical Liability in Massachusetts

Alan C. Woodward MD

New England Baptist Hospital

March 7, 2012

What is WrongWith the Status Quo?

Impact on patients– Baseline suspicion: Compromises the physician-patient

relationship– Unfair: A small minority of avoidably injured patients receive

compensation– Slow: Average time to award is more than 5 years– Inequitable and inconsistent: Awards highly variable (“jackpot

justice”)– Inefficient and expensive: Patients receive less than 30% of

premium dollars paid– “Wall of Silence” between patients and physicians– Compromises access to care – Impedes patient safety improvement

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What is WrongWith the Status Quo?

Impact on physicians

– Premiums are burdensome / unaffordable– View patients as potential litigants – Stress of “never being wrong” – Avoid high risk procedures / patients– Leaving practice or retiring early – Negative health impacts– Lost trust in justice system – Practice defensive medicine

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What is WrongWith the Status Quo?

Impact on Health Care System

– Thwarts patient safety improvement– Undermines the practice environment– Compromises size, distribution and well-being of health care

workforce– Compromises access to care– Drives over-utilization - defensive medicine– Drives up overall cost of health care– Increases the number of uninsured / underinsured

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Rising Costs

Per Capita Health Expenditures:550 in 2020

Per Capita GDP:

337 in 2020

Wages and Salaries:

325 in 2020

Consumer Price Index

(CPI):224 in 20201991=100

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Source: Mass. Dept. of Health Care Finance and Policy

Overuse: Resource Drivers

• Payment system• Defensive medicine• End of life care• DTC advertising• Unrealistic expectations• Poor Communication • Overregulation• Others

Qu

alit

y

Cost

Estimates of Defensive Medicine

• Studdert (2005): 93% of physicians practice defensive medicine

• AAOS 2010 concurrent study: 72 OS care >2000 Pts revealed 20% of tests and 35% of costs DM

- 2012 survey 96% practice DM 24% of costs• Multiple studies - range from 2% to 35% • Tillinghast (2000): $70 billion annually in U.S.;

$1.5 billion in Mass. ($253 per person)• MMS (2008) Survey – pervasive, 18-28% tests –

13% admissions - $1.4 billion quantified

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The result . . .

The current liability system is profoundly dysfunctional for the patient and provider, and

undermines the integrity, safety and efficiency of our entire health care system.

“For compensation, deterrence, corrective justice, efficiency and collateral effects, the system gets

low or failing grades.”- Michelle Mello, Harvard School of Public Health

The status quo is unaffordable, unsustainable and undesirable.

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Medical Liability Reform

• Tort system– Last resort

• A fundamentally different system– Fair, efficient, reliable, just and accountable – Supports patient safety improvement– Stops driving defensive medicine

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Reform Options

• MICRA– Attenuates premium increases– Minimal impact on defensive medicine

• Health courts– Fiscally difficult; uncertain impact on defensive

medicine

• COPIC/3 R’s, Coverys/React– Limited impact

• Disclosure, Apology and Offer– Addresses broadest range of concerns

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• Baseline culture of safety- Root-cause analysis

• Full disclosure• Apology when appropriate• Injury compensation

– Timely and fair

• Alternative dispute resolution

• Tort is the last resort

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DAO Components

A Fundamental Transformation

Reactive Proactive

Adversarial Advocacy

Culture of secrecy Full disclosure / transparency

Denial Apology (healing)

Individual blame System repair

Patient/MD isolation Supportive assistance

Fear Trust

Defensive medicine Evidence-based medicine

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University of Michigan: Impacts

• Started in 2001 (262 claims and > 300 open cases)• By 2007, only 73 new claims and < 80 open cases • Average case resolution time down from 20 months to 8

months• Transaction expenses reduced $48k to < $20k/case• By 2002, stopped buying reinsurance• By 2010, reduced reserves $72M to $19M, funding patient

safety initiatives• Court cases reduced more than 90%• Premiums are significantly lower for unlimited coverage• Culture change - fear factor reduced• Incident reporting - increased many fold

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Univ. of Michigan: Faculty Response

• 87% said the threat of litigation adversely impacted the satisfaction they derived from practice

• 98% recognized, and approved of, new approach

• 55% said the new approach was a “significant factor” in their decision to stay at Univ. of Michigan

• Has become a positive physician recruitment tool

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Univ. of Michigan: Plaintiff Bar Response

• 100% rated Univ. Michigan “the best” and “among the best” health systems for transparency

• 90% recognized a change since 2001• 86% said transparency allowed them to make better

decisions about claims to pursue– 57% admitted that they turned down cases they otherwise would

have pursued

• 81% said costs were less• 71% said they had settled cases for less than if they

had litigated

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The Right and Smart Thing to do

• For Patients

• For Patient Safety

• For Providers

• For Hospitals

• For Healthcare Access and Affordability

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AHRQ Liability Reform Grants

• Pilot grants: Up to $3 million over 3 years

• Planning grants: Up to $300k and one year

• Medical liability models that:– Put patient safety first– Reduce preventable injuries– Foster better communication– Fair and timely compensation medical injuries– Reduce incidence of frivolous lawsuits– Reduce liability premiums

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Project Information

Project Team:BIDMC: Kenneth Sands, MD (PI)

Sigall Bell, MD Peter Smulowitz, MD Anjali Duva

MMS: Alan Woodward, MDElaine Kirshenbaum, MPHCharles T. Alagero, JDLiz Rover Bailey, JDRobin DaSilva, MPHTherese Fitzgerald, PhD

HSPH: Michelle Mello, JD, PhDU. Michigan: Rick Boothman, JD

Sponsorship:• Agency for Healthcare

Research and Quality (AHRQ)

• 1 Year planning grant• Part of Medical Liability &

Patient Safety Demonstration Project program

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Project Goals

• Identify barriers to implementation of a DA&O model patient safety initiative in Massachusetts

• Develop strategies for overcoming barriers

• Design a Roadmap to reform medical liability and improve patient safety based on study findings

• Examine the degree to which the proposed plan for Massachusetts has applicability for other states.

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Methodological Approach

• Key informant interview study of knowledgeable individuals from leading stakeholder consituencies in Massachusetts

• 27 individuals recruited in fall 2010

• Semi-structured in-person interviews of 45-60 minutes, 2 physician interviewers (one exception)

• Interviewers received training and followed an interview guide

• Interview transcripts excerpted, coded by theme and analyzed using standard content analysis methods

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Constituencies Sampled by Interviews

• Provider Organizations– Academic Hospital– Non-academic hospital– Physician Practice Groups

• Physician community– Academic– Non-academic– Primary care– Subspecialty

• Insurers– Health Insurer– Malpractice Insurer (captive

model)– Malpractice Insurer

(commercial model)

• Legal – Plaintiff’s Bar– Defense Bar

• Public Entities– Massachusetts Legislature– Department of Public Health– Board of Registration in

Medicine– Administration,

Commonwealth of Mass• Advocacy Groups

(Several)• Patient Safety Experts

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Topics in Interview Guide

• Respondent’s institutional setting and relevant experience

• Perceived barriers to implementation of DA&O model in Massachusetts

• Suggested strategies for overcoming those barriers

• Overall perception of the potential for the DA&O model to improve the medical liability and patient safety environments in Massachusetts

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Interview DesignOpen Query Re: Potential

Barriers

Informant identifies barriers

Probe for Additional BarriersNot Mentioned on Initial Query

Informant comments; Full list of significant barriers

Query for potential strategies

Informant Identifies strategies

Probe: for Additional Strategies

Informant Comments

Full list of Barriers Created

Full list of Strategies Created

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Process for Analyzing Interviews and Developing Roadmap

• Interview Recordings Transcribed

• >1400 excerpted statements

• Coded and Compiled by Impediment and Related Strategies

• Strategies evaluated by frequency mentioned, feasibility, importance, time frame

• Road Map drafted and circulated to interviewees for comment then presented

Barrier* # of Respondents

Charitable immunity law 22

Physician discomfort with disclosure and apology 21

Attorneys’ interest in maintaining the status quo 20

Coordination across insurers 20

NPDB or state reporting requirements 19

Concern about increased liability risk 16

Forces of inertia 13

Fairness to patients 12

May not work in other settings 11

Insufficient evidence 8

Supporting legislation 8

Accountability for the process 5

Barriers to DA&O Model Implementation

* Other barriers, not listed, were mentioned by <4 respondents

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Charitable Immunity: Strategies

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Discomfort with Disclosure: Strategies

• Education and training– “Disclosure is not amateur hour. It requires a certain

level of expertise.” – A physician

– Disclosure as competency and/or licensure requirement

– Coaching model and peer mentoring– Involve patients/families in disclosure training

• Couple with “just culture,” peer support

• Support from institutional leadership key

• Stronger apology law needed

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Attorneys’ Interest: Strategies

• Educate and persuade– Model preserves role for attorneys– Lower legal expenses for both sides– Improved access to compensation for patients– Fewer high-stakes gambles for attorneys– Does not abridge patients’ legal rights– Facilitates safety improvement– Share the experience of Michigan attorneys

• Move forward over attorneys’ resistance

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• Education: bring insurers together around shared set of values that support patients

• Convene a forum for insurers to cooperatively resolve codefendant issues

• Involve the Commissioner of Insurance, the Office of Patient Protection, or formal regulation/legislation

• Most stakeholders felt this could be handled through a collegial approach

Insurer Coordination: Strategies

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Reporting Requirements: Strategies

• Education – Perceptions of how often NPDB and BORM data are

actually used may be exaggerated– Assure physicians that cases where standard of care

was met will not be settled

• Consider institutional strategies to drop physicians as named defendants, where possible

• Consider process change, regulation, or legislation that allows institution-based reporting for system failures

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• Provide evidence that liability risk does not increase with DA&O approach– “Nothing will relieve the anxiety more than seeing that

it works.” – A patient safety advocate

– Share Michigan data– Generate new data through pilots

• “Top down” approach / leadership

• Enterprise liability

• Stronger apology law

Liability Concern: Strategies

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Inertia: Strategies

• Education– Shortcomings of the current system & benefits of DA&O– Data to support that a DA&O model would work in

Massachusetts

• Centralized resources/toolkit to support leaders

• Opinion leaders and patient advocates: emphasize the difference it can make for patients

• Insurance incentives: rewards for DA&O approach

• Collaboration to create momentum: MHA, MMS, BORM, DPH, insurers, patient advocacy groups

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Fairness & Accountability: Strategies

• Educate public and media

• Encourage patients to have legal representation

• Establish standard, transparent compensation formula

• Get the RCA process right– Role for patients/families?– How transparent should the findings and lessons

learned be?– Collaborative process across institutions/insurers?

• Role for external regulation?

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Success in Different Settings: Strategies

• Resource center– Model policies– Centralized training and education toolkit

• Statewide risk-pooling or reinsurance scheme, particularly for smaller hospitals

• Get physicians’ buy-in to a standardized approach, making their responsibilities clear

• Oversight mechanism to ensure adherence to these guidelines

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Appealing Aspects of Model

Theme # of Respondents

Ethical and professionalism considerations 24

Reduces legal costs/risk 20

Improves culture within hospital 15

Improves dispute resolution process 10

Serves patients’ needs better 10

Pragmatic considerations (feasible; politically saleable; would make hospital look good)

3

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Appealing Aspects

Professional ethics“The appealing part would be that it’s the right thing to do, that it removes all those legal curtains, the discomfort and the barriers that make it hard to have a conversation with someone and just say, ‘We're sorry we hurt you. We want to make it right for you.’” – A hospital representative

Improves safety culture“It encourages learning. It encourages preventing the next problem so you're not just covering something up. You’re saying, ‘Let’s really look at what happened. Let’s get it out in the open and let’s have a good conversation. Then the next time, it’s less likely to happen.’” – A state official

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Alternatives to the DA&O Model

Alternative Suggested (often as an adjunct to DA&O)

# of Respondents

No alternative is superior 14

Heath courts / other fast adjudication system 6

Caps on damages 3

Cooling-off period 2

Patient compensation fund 1

Enterprise liability 1

ADR agreements 1

Expert witness regulations 1

Mandatory prejudgment interest 1

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Summary

• Overall perception of DA&O model very favorable– Positive effects on patient safety frequently noted

• Objections raised were primarily barriers to implementation (e.g., difficulty achieving culture change)

• Attorney opposition needs to be confronted

• Other stakeholders are highly interested

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Roadmap: Key Points

• Education - programs for all involved parties

• Leadership - from all key constituencies

• Model Guidelines - support consistency

• Collaborative Working Groups - key issues

• Enabling Legislation - to create a supportive environment

• Data Collection and Dissemination

Build a Coalition for Change

• Engage constituencies motivated to change the system

• Disseminate the Roadmap

• Encourage constituents to educate their membership

• Develop media campaign

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ARHQ Demonstration Grant

• Apply for HHS / AHRQ Demonstration Grant to Implement the Roadmap

• Engage health care systems, the state, and other key participants / consultants

• Establish Education Resource and Data Center

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Demonstration Grant Participants• BIDMC / System

• Baystate Health System

• MMS - Education / Guidelines / Forums

• MHA - Education / Guidelines

• MCPME - Education / Resource Center

• BORM - Reporting / Dissemination

• MITSS - Education / Patient Advocacy

• HSPH - Assessment

• UM – Policies / Workbook / Coaching42

Presentation at AHRQ National Conference, September 2011

• Of 7 demonstration projects and 13 planning projects funded, they chose 2 demonstration and one planning project (ours) to highlight in this session

• Panel moderated by Jim Battles of AHRQ. Our project introduced by him as “very exciting work.”

• Funding through ACA on hold

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• Disseminate the Roadmap• Build a Coalition for Change• Obtain Funding• Engage Key Constituencies and Educate Members• Establish Education Resource and Data Center • Pursue Enabling Legislation: Apology – Resolution period

– Sharing records – Reporting • Pilot Program in Massachusetts, in a variety of settings

– Captive vs. commercial insurance– Large vs. small hospitals– Employed physician vs. independent

Moving towards Implementation

The Potential Payoff

“I think it’ll be a huge win for patients, a huge win. I think they suffer as much as anybody in the courts, maybe more. It’ll be a huge win for providers emotionally. It will be a huge win from a financial perspective because the right people will be getting compensated in a more timely manner and there will be far less waste in the process. That’s a lot of benefits.” – A hospital representative

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Enabling LegislationRecommendation:

• Develop a formal strategy to advance legislative changes to address, independently:

– Protection of apology– Mandatory pre-litigation review period– Access to records for RCA– Changes to the National Practitioner Data Bank and

state Board of Registration of Medicine reporting requirements

Signs of Progress/Change

• National: VA, Univ. of Michigan, Univ. of Illinois, Stanford, Joint Commission, Sorry Works, RWJ, AHRQ,

and ACA pilots • Massachusetts: Dana Farber, CRICO (RMF), MGH, B&W

(MITSS), Fallon, Coverys, BIDMC, and payment reform legislation

• Forces aligning for change and we are approaching the tipping point

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Implications Beyond Massachusetts

• Massachusetts has unique barriers . . .– Charitable immunity– “Statement of regret” protection but no “apology”

protection

• … But unique advantages– Universal coverage– Payment reform– Momentum around current proposed legislation

• However, many of the identified impediments and solutions are in fact applicable in other states.

Pursue Enabling Legislation

• Apology protections

• Timely notice with sharing of all pertinent medical records

• Tie to Payment Reform Legislation and as Independent initiative

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