We’ve blogged now and then about alternatives to malpractice litigation and are particularly interested in approaches that can address the needs of injured patients and families while also advancing overall patient safety and quality of care. I wrote a piece the other day for Miller-McCune, a California-based magazine, focusing on the “disclose and apology”model. What struck me as I reported the article is that it isn’t (as many articles on this topic have suggested) about apologizing per se. It’s about finding and fixing the root of the problem. As I wrote:
Disclose and apologize doesn’t mean the hospitals or doctors say to a patient or family, “Something went wrong. We’re sorry. Here’s a check. Ciao.” It means, or should mean, they say something like, “You had a bad outcome. We are sorry. We will try to help you while we investigate what happened. If it was our fault, we will take financial and moral responsibility. We will do our best to make sure it never happens again to anyone else.”
The hospitals that are succeeding with this model have had to change their culture in myriad ways. They need to make sure that everyone from the executive suite to the greenest intern or lowest-paid aide know it is safe -- not just safe but welcome and essential -- to report errors, near errors, and potential errors. They need to create better mechanisms for figuring out if a bad outcome was avoidable, and to put in place any new protocols or safety systems to prevent it from happening again. And they need to create internal peer supports for health care providers who are involved in a case that went wrong. Because when a healer harms, they can be traumatized too.
The other thing I learned is there are many obstacles to expanding this model. The best known examples, like the University of Michigan or the Lexington VA center, are staff models. The doctors are part of the hospital staff and everybody is covered by the same malpractice insurer. That’s not true in most hospitals, and there can be numerous doctors, numerous insurers, all with their own take on what happened and whether to disclose -- or deny. I write about some of the possible solutions being tested or discussed. The Agency for Healthcare Research and Quality is reviewing grant proposals from health systems around the country, and we may see some new ideas when those grants are announced in about six months from now. (AHRQ can’t discuss any of that while the grants are under review.)
I also spoke briefly about this topic to Dartmouth Atlas researcher Dr. Elliott Fisher. Malpractice isn’t his major area of research, but he has considered its effect on the regional variation on health spending and utilization that Dartmouth has mapped. He estimates that malpractice -- or more accurately doctors’ perception of the malpractice threat -- contributes to up to 10 percent of the regional variation. Not 10 percent of the medical cost. Ten percent of the variation. And based on the data we have so far, if you were to superimpose a map of the states with malpractice caps over the Dartmouth maps of high and low intensity regions, there would not be a clear correlation. In other words, the places with caps aren’t the places practicing the most efficient and cost-effective medicine. But these perceptions are real. Doctors believe them to be true. And as I wrote in American Prospect a few months ago, these perceptions can get in the way of doctors making and accepting the kinds of changes (including new payment incentives) we need to make health reform work. As Dr. Fisher said, “We ought to do something” to address physicians’ fears of lawsuits. And by alleviating their fears with smart and fair malpractice reform, Fisher said, “we should take away that excuse” from change-averse physicians.