Massachusetts Docs Eye New Approach to Medical Malpractice Claims

April 19, 2012

It may become easier in the future for Massachusetts doctors to apologize for mistakes if an experiment by three major hospitals to reduce medical malpractice lawsuits succeeds.

The program, called Disclosure, Apology and Offer, targets “defensive medicine” — a term describing often unnecessary or excessive tests and procedures ordered by doctors wary of being sued by their patients. Many experts consider defensive medicine to be among the top drivers of soaring health care costs nationwide.

The Massachusetts Medical Society, which represents nearly 24,000 physicians, announced the initiative on Wednesday and hopes it will promote a less confrontational atmosphere between patients and doctors when medical mistakes occur and speed resolution of disputes.

The approach is patterned after one pioneered a decade ago by the University of Michigan Health Care System that has been credited with keeping a majority of claims out of the courts, and cutting legal and insurance-related malpractice expenses for hospitals in the process.

“The point is, if you really want to deal with health care costs, you have to stop driving defensive medicine, which is based on the fear of being engaged in the current liability system,” said Dr. Alan Woodward, chair of the medical society’s Committee on Professional Liability.

The initiative will be piloted by Massachusetts General Hospital and Beth Israel Deaconess Medical Center in Boston, and Baystate Medical Center in Springfield. Four smaller hospitals affiliated with Beth Israel and Baystate will also participate.

Hospitals would be required to swiftly disclose to patients and their families any unanticipated, negative outcomes of medical care and promptly investigate what happened. If a hospital determines it was at fault, it would issue an apology, followed by an offer of financial compensation.

Health care providers are often reluctant to apologize or quickly own up to errors out of fear that such contrition could be used against them in a malpractice trial.

“In the current system, patients virtually never get an apology,” said Woodward, who added that the initiative could deliver financial compensation to a patient or family within 3-6 months, rather than the average 5 1/2 years it takes for a malpractice lawsuit to wend its way through the courts.

Patients who accept a financial offer would waive their right to future litigation. But they could reject an offer they consider inadequate and pursue mediation, or sue if necessary.

Dr. Kenneth Sands, senior vice president for health care quality at Beth Israel, said patients would also be allowed legal representation as they consider a compensation offer.

“This isn’t, `You’re not allowed to go get a lawyer, here’s a dollar figure, take it or leave it.”‘

Conversely, a hospital would not have to apologize or make a financial offer if it decides no errors were made and the medical outcome was unavoidable due to factors such as underlying disease or inherent surgical risks.

One concern is that some doctors might resist settlements because of a state law that allows consumers to view any malpractice findings against doctors. Sands worries that might tempt some physicians to “cross their fingers” and hope a patient doesn’t sue rather than acknowledge an error that would be noted on their records.

Andrew Meyer, Jr., a prominent Boston malpractice attorney, said he favored any approach that would result in more openness from the medical profession.

“There is too much cover-up, too much circling of the wagons and too much attempt to avoid responsibility for the errors that are made,” said Meyer.

At the same time, Meyer wondered whether the initiative might merely reflect the desire of hospitals and their insurers to avoid litigation and limit compensation.

“It certainly is an attractive feature to resolve a claim quickly,” but fairness sometimes requires a lengthier court process, he said.

The Massachusetts effort began in 2010 after the state received a $2.9 million federal grant to develop programs leading to more timely resolution of disputes over medical errors. Similar grants were made at the time to researchers or health care providers in Chicago, Minneapolis, Houston, St. Louis and Seattle, and to the New York court system.

President Barack Obama has advocated reforms similar to those proposed by the Massachusetts hospitals as part of an effort to reduce defensive medicine costs. While those precise costs are difficult to pinpoint, some estimates have placed it as high as $50 billion annually. Woodward said a 2008 study by his group estimated that 12 to 15 percent of total health care costs could be attributed to defensive medicine.

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