Does Voluntary Disclosure of Medical Errors Prompt or Prevent Medical Malpractice Suits?

(1)

Does

Voluntary Disclosure of Medical Errors Prompt or Prevent

Medical Malpractice Suits?

Lorens A. Helmchen

School of Public Health

University of Illinois at Chicago

Institute of Government and Public Affairs

University of Illinois

(2)

Patient Safety:

Too Little Compensation, Too Little Deterrence

 Medical errors are costly – mostly for patients

 Preventing medical errors is costly – mostly for providers

 For compensation, patient must prove provider’s negligence:

(1) they suffered an injury

(2) that was caused by the provider’s (3) substandard care.

 Results in:

 long time to reach trial verdict

 uncertainty about trial verdict

 very high overhead: “For every dollar spent on

compensation, 54 cents went to administrative expenses (lawyers, experts, and courts).” (Studdert et al 2006)

 too few lawsuits, most cases settle

 too little compensation (especially for small cases)

 too little deterrence: providers do not bear full cost of error

(3)

University of Illinois Medical Center at Chicago

 large, urban, tertiary-care academic medical center

 ~ 20,000 patients discharged per year

 > 40% admitted via Emergency Department

 about half either uninsured or on Public Aid

 quarter of patients seek care related to pregnancy, childbirth, and neonatal care

 ca. 100 kidney transplants annually

 self-insured against professional liability

 located in “judicial hellhole”

 old risk management strategy: “deny and defend”

 catalyst for change: missed leukemia diagnosis

(4)

What do patients want after event?

Five "R"s of Apology (Woods 2007)

 Remain Engaged

honest, frequent, consistent communication

 Recognition

that an unexpected adverse outcome has arisen

 Regret

express empathy for the patient’s loss and harm

 Responsibility

accept fact that provider’s action caused harm

admit negligence (if harm indeed due to negligence) apologize

 Remediation medical

financial

learn from incident to prevent recurrence

(5)

Voluntary Disclosure of Medical Error at the U of Illinois Medical Center

1. Patient Safety Incident Reporting 2. Investigation

3. Communication and Disclosure 4. Apology and Remediation

5. System Improvement

6. Data Tracking and Performance Evaluation

7. Education and Training

(6)

(7)

Why (Not) Disclose Errors?

pro

 ethical imperative

 learn about “system failures” and prevent recurrence

 personnel retention

 avoid claims, reduce legal costs contra

fear that botched disclosure will only compound the error:

 frustrate frontline practitioners

 ruin reputation of organization and individual practitioners

 alienate patient, friends and family

 trigger costly wave of payments pragmatism

 existing programs at Lexington VA, U Michigan Health System seem to work, provide template

 legislative initiatives at state and federal levels, e.g.

National Medical Error Disclosure and Compensation (MEDiC) Act of 2005 [introduced by Clinton and Obama; did not pass]

(8)

Bargaining with Private Information

 both sides observe severity of injury, W

 defendant knows better than the plaintiff the degree of liability q that the court will assign if trial (asymmetric information):

 defendant knows realization of q

Plaintiff moves first by demanding settlement S

“Provider is reactive”

 Signaling Model

Defendant moves first by offering settlement S

“Provider is proactive”

(11)

Plaintiff screens for q

 after injury W, plaintiff demands settlement S

 if defendant accepts S, game over:

 defendant pays S

 plaintiff receives S

 if defendant rejects S, plaintiff has 2 options:

 LITIGATE: true q is revealed defendant pays qW + C

_d

plaintiff receives qW – C

_p

 GIVE UP:

defendant pays 0 plaintiff receives 0

 defendant accepts demand iff S ≤ p[qW + C

_d

]

(12)

ACCEPT REJECT

GIVE UP LITIGATE

PLAINTIFF

DEFENDANT

NATURE

PLAINTIFF

(–S , S)

( 0, 0) (– qW – Cd , qW – C_p)

Plaintiff screens for q

demand S

ACCEPT REJECT

GIVE UP LITIGATE

(–S , S)

( 0, 0) (– q’W – Cd , q’W – C_p)

q q’

(13)

Plaintiff screens for q – Equilibrium

+ C

_p

)/W]

(14)

Defendant signals q

 after injury W, defendant offers settlement S

 if plaintiff accepts S, game over:

 defendant pays S

 plaintiff receives S

 if plaintiff rejects S, trial: q is revealed and

 defendant pays qW + C

_d

 plaintiff receives qW – C

_p

(15)

ACCEPT REJECT DEFENDANT

NATURE

PLAINTIFF

(–S , S) (– qW – C_d , qW – C_p)

Defendant signals q

offers S

q q’

offers S’

ACCEPT REJECT

(–S’ , S’) (– q’W – C_d , q’W – C_p)

(16)

Defendant signals q – Equilibrium

 defendant always offers qW – C

_p

 plaintiff indifferent between accept / reject

 plaintiff more likely to reject lower offers (to keep defendant honest)

 plaintiff’s expected compensation:

W/2 – C

_p

 defendant’s expected payment:

W/2 + C

_d

- [(C

_d

+ C

_p

)/k][(C

_d

+ C

_p

)/W]

where k < 2.

(17)

Screening versus Signaling

17

model plaintiff’s expected compensation

symmetric

information W/2 – C

_p

)/2 asymmetric

information

_d

- [(C

_d

+ C

_p

)/k][(C

_d

+ C

_p

)/W]

where k < 2.

(19)

 2001 Personnel changes in legal counsel office & in hospital leadership – biggest naysayer left UIMCC.

 2003 Beginning of medical malpractice insurance crisis in Cook County, Illinois

 Approval to craft a “full disclosure” process for presentation to the University’s Board of Trustees

 April 2006 The Comprehensive Process for Responding to Patient Safety Incidents at UIMCC goes live

Error disclosure at UIMCC: the timetable

(20)

Claims against UIMCC (preliminary)

Fiscal Year

2002 2003 2004 2005 2006 2007 2008

reported patient safety

incidents 2,127 2,152 1,892 1,669 1,823 2,069 2,353

confirmed Sentinel

Events¹ 6 8 5 4

lawsuits filed against

UIMCC² 32 20 16 21 22 19 3

… closed 27 12 9 9 4 1 0

… dropped 18 5 7 6 2 1 0

… settled 6 5 1 2 2 0 0

… defendant won 1 2 1 1 0 0 0

… plaintiff won 2 0 0 0 0 0 0

discharges – UIMCC only 17,642 18,387 18,458 18,533 19,255 20,838

… high-risk³ 472 508 497 494 521 582

discharges – all Cook

County hospitals 841,654 772,060 801,990 809,180 803,617 806,871

1 “unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof” (Joint Commission 2007).

2 as of December 2008.

3 any of 40 DRGs that were found most likely to be associated with an adverse event in the HMPS (1990).

(21)

Conclusions



voluntary disclosure does not begin or end with mere provider-patient communication

 requires comprehensive process



key element: shift from reactive to proactive management of error

 make asymmetric information about liability work in favor of defendant



retain positive probability of trial to keep defendant honest

 externality of cases that go to trial on future settlements



works within given system of med mal dispute resolution

 won’t change accuracy of determining true negligence



particularly beneficial for hospitals with sharp improvements in their patient safety performance record

