Accountability after Medical Injury: Recent Developments and Future Directions

Thomas H. Gallagher, MDProfessor of Medicine, Bioethics & HumanitiesDirector, UW Medicine Center for Scholarship in Patient Care Quality & SafetyDirector, Program in Hospital MedicineUniversity of Washington

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The Accountability Gap

• Fear of unpredictable, punitive response chills provider reporting of adverse events• Hampers efforts to learn, prevent recurrence

• System does not serve patients’ needs • Information• Acceptance of responsibility• Timely compensation• Prevention of recurrences

• System stresses providers financially and emotionally

Where’s the Patient?

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• Only modest efforts to involve families as partners in preventing and resolving injuries

• Reform debates heavily driven by providers’ and insurers’ concerns

• Little understanding of what accountability actually means to patients

What Would an Accountable System Look Like?

• Healthcare institutions and providers:• Recognize that event has occurred• Disclose it effectively to the patient• Proactively make the patient whole• Learn from what happened

• In a healthcare delivery environment that:• Prospectively monitors quality of care• Identifies unsafe providers and employs effective

remediation• Spreads learning across institutions

• In a legal/regulatory environment that supports providers in “doing the right thing”

Recent Developments

• The disclosure gap persists• CRPs• LSAE disclosure• Communicating with patients about

other healthcare workers’ errors• Collective Accountability

• COPIC• 3Rs program for disclosure and

compensation, 2007-2009• 837 Events• 445 patient surveys (55% response rate)• 705 physician surveys (84% response

rate)

Quality of Actual Disclosures

Patient Assessment

Physician Assessment

Extremely serious (I might have died)

31% 7%

Very Serious (permanent injury)

25% 25%

Somewhat serious (injury that resolved)

28% 61%

Not at all serious 3% 6%

Event Severity

Quality of Disclosure

Two CRP Models

• Goal: Reimburse out-of-pocket expenses for minor injuries without regard to fault

• Examples: COPIC Insurance, West Virginia Mutual Insurance Co., ProMutual Group

Reimbursement Model

• Goal: Expedite settlement of incidents involving substandard care

• Examples: University of Michigan Health System, University of Illinois at Chicago, Stanford University Medical Indemnity Trust

Early Settlement Model

The Appeal of Institution-Led Reform

• No need for legislation

• Can be led by physician champions and other insiders

• More palatable to patient and attorney organizations

• Can be tailored to local institutional culture

• Governed by market forces

The CRP Approach Catches On

First wave:• Lexington VA

• Early Settlement Programs:

• University of Michigan

• UIC

• Stanford

• Reimbursement programs:

• COPIC

• Coverys

• West Virginia Mutual

Second wave:• HealthPact partners

(Washington)

• NYC hospitals

• Massachusetts Alliance for Communication and Resolution following Medical Injury (MACRMI)

• 10 Illinois hospitals

• University of Texas

• Ascension Health

Third Wave14

How Are LSAEs Different?

• Like individual adverse events• Type, cause, severity vary widely• Strong patient expectations for disclosure, learning

• Unlike individual adverse events• By definition, involve multiple patients (sometimes

thousands)• Hard to keep quiet• High potential for negative impact on reputation of

organization• Responding appropriately is highly resource intensive

• Many represent near misses• Don’t know which patients are affected until investigation

complete• Primary harm may be anxiety caused by disclosure itself

How Can Institutions Effectively Link Disclosure Strategy with LSAE type?• LSAE with low potential for harm

• Primarily mailed disclosure• LSAE with high potential for harm

• Primarily direct, in-person disclosure• However…

• Patient perception of severity of harm can vary dramatically from that of the institution

• When media gets involved, they essentially provide written disclosure to entire community

• For high harm event, this alerts potential LSAE recipients before institution can contact them directly

• Part of how patients judge LSAE is by watching how institution handles notification, response

• Tsunami of anxious patients calling institution after seeing media report can overwhelm based laid plans for response

Matching Disclosure Content and Nature of LSAE• The “ick factor”

• Contaminated endoscopes• Duke hydraulic fluid case

• Greater specificity about exactly what happened, plans for preventing recurrences can persuade patients, public that institution has responded appropriately• But feels to some institutions like admission of liability• Blame is natural reaction to adverse events, increases

absent evidence of robust response• Benefits of public partnership in response with external

entities (public health, CDC)

How Proactive Should the Media Strategy Be?

• Assume media coverage of LSAE is inevitable• The more proactive the strategy, the better

• Provide press release, prep organizational leaders and external partners to talk to media

• Best media strategy will not lead to positive story, just one that is less negative, not as visible, and goes away quickly

• Almost impossible to recover from combination of LSAE plus botched disclosure/ “cover-up”

Should I Talk to Involved Clinician?

• Discuss what happened, what to say to patient• Easier said than done

• Fear of how colleague will react• Strong cultural norms around loyalty, solidarity, tattling• Reluctance to acquire unfavorable reputation, or

disrupt are relationships• Power differentials• Dependence on colleagues for referrals

• Some clinicians use chart to document concern without confronting colleague

Maybe My Institution Could Help

• Clinicians worry that reporting event to institution could trigger unpredictable, potentially punitive response• Or that no action will be taken

• Clinicians may have different malpractice insurers

• Many clinicians work in small practices without ready access to institutional resources

What Should I Say To The Patient?

• Concerns about destroying patient trust in colleague

• Fear of triggering litigation• Subjecting colleague to conversation with angry

patient is one thing• Subjecting colleague to potential lawsuit is much

more worrisome• Unclear how state apology/disclosure laws apply • No evidence regarding how to disclose other

clinicians’ error without triggering claim

What happens currently?

• When faced with another healthcare workers’ error, most providers• Hesitate to discuss event with the involved

provider, especially when at outside institution• Worry that reporting event to institution could

trigger punitive, unpredictable cascade• Are reluctant to tell the patient

• If event mentioned at all, vague language used and patient left to “connect the dots”

Key Principles

• Patients and families come first• Explore, don’t ignore• Institutions should lead

Patients and Families Come First

• Concern about collegial relationships do not obviate patient’s right to know what happened

• Patients and families should not have to dig for information• Patients and families will need financial help after serious

error• Can’t access compensation without knowing what happened

• The tort system is dysfunctional and may not treat physicians fairly• Yet professionalism calls on physicians to put the patient’s needs

first

• When disclosure is ethically required, fact that it is difficult should not stand in the way

Explore, Don’t Ignore

• Before talking to patient about potential error involving colleague, first obligation is to obtain the facts• Patient’s interests are not served by

speculation• Colleagues deserve chance to correct

misconceptions, participate in disclosure

• Strengthened commitment to exploring potential errors with colleagues is needed

Institutional support

• Disclosure coaches• Role modeling by senior colleagues • Formal venues to address quality concerns

• M&M, peer review

• Informal approaches• Curbside consultation with risk/quality expert• Ensure that relevant QI/peer review protections

in place

Why Does the Bad Apple Model Persist?

• Check the mirror• Blame feels good

• “I wouldn’t/couldn’t/can’t see myself doing that”

• Competence is not binary• Exists on spectrum across and within

individuals

• Who are the bad apples? Physicians who can’t or won’t learn from mistakes

Collective Accountability

• Transparency with each other, patient is shared professional responsibility• Need to share, act on information together

• Requires that we turn towards, not away from colleagues involved in potential error

What Does Accountability Look Like?

• After medical injury• Meet needs of affected patient• Demonstrated learning