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Roadmap for Transforming Medical Liability in Massachusetts Alan C. Woodward MD New England Baptist Hospital March 7, 2012.

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Presentation on theme: "Roadmap for Transforming Medical Liability in Massachusetts Alan C. Woodward MD New England Baptist Hospital March 7, 2012."— Presentation transcript:

1 Roadmap for Transforming Medical Liability in Massachusetts Alan C. Woodward MD New England Baptist Hospital March 7, 2012

2 What is Wrong With 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 2

3 What is Wrong With 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 3

4 What is Wrong With 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 4

5 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 2020 1991=100 5 Source: Mass. Dept. of Health Care Finance and Policy

6 Overuse: Resource Drivers Payment system Defensive medicine End of life care DTC advertising Unrealistic expectations Poor Communication Overregulation Others Quality Cost

7 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 7

8 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. 8

9 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 9

10 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 10

11 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 11 DAO Components

12 A Fundamental Transformation ReactiveProactive AdversarialAdvocacy Culture of secrecyFull disclosure / transparency DenialApology (healing) Individual blameSystem repair Patient/MD isolationSupportive assistance FearTrust Defensive medicineEvidence-based medicine 12

13 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 13

14 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 14

15 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 15

16 The Right and Smart Thing to do For Patients For Patient Safety For Providers For Hospitals For Healthcare Access and Affordability 16

17 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 17

18 Project Information Project Team: BIDMC: Kenneth Sands, MD (PI) Sigall Bell, MD Peter Smulowitz, MD Anjali Duva MMS: Alan Woodward, MD Elaine Kirshenbaum, MPH Charles T. Alagero, JD Liz Rover Bailey, JD Robin DaSilva, MPH Therese Fitzgerald, PhD HSPH: Michelle Mello, JD, PhD U. 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 18

19 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. 19

20 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 20

21 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 21

22 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 22

23 Interview Design Open Query Re: Potential Barriers Informant identifies barriers Probe for Additional Barriers Not 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 23

24 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

25 Barrier*# of Respondents Charitable immunity law22 Physician discomfort with disclosure and apology21 Attorneys’ interest in maintaining the status quo20 Coordination across insurers20 NPDB or state reporting requirements19 Concern about increased liability risk16 Forces of inertia13 Fairness to patients12 May not work in other settings11 Insufficient evidence8 Supporting legislation8 Accountability for the process5 Barriers to DA&O Model Implementation * Other barriers, not listed, were mentioned by <4 respondents 25

26 Charitable Immunity: Strategies Voluntary waiver-by-settlement “You don't necessarily need to take charitable immunity away to make a program like this fly. What you need to do is convince the institutions to waive their charitable immunity and take systems-level responsibility.” – A hospital representative Raise the cap on hospital liability Remove the cap and address through enterprise liability and ACOs 26

27 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 27

28 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 28

29 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 29

30 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 30

31 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 31

32 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 32

33 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? 33

34 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 34

35 Appealing Aspects of Model Theme# of Respondents Ethical and professionalism considerations24 Reduces legal costs/risk20 Improves culture within hospital15 Improves dispute resolution process10 Serves patients’ needs better10 Pragmatic considerations (feasible; politically saleable; would make hospital look good) 3 35

36 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 36

37 Alternatives to the DA&O Model Alternative Suggested (often as an adjunct to DA&O) # of Respondents No alternative is superior14 Heath courts / other fast adjudication system6 Caps on damages3 Cooling-off period2 Patient compensation fund1 Enterprise liability1 ADR agreements1 Expert witness regulations1 Mandatory prejudgment interest1 37

38 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 38

39 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

40 Build a Coalition for Change Engage constituencies motivated to change the system Disseminate the Roadmap Encourage constituents to educate their membership Develop media campaign 40

41 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 41

42 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 / Coaching 42

43 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 43

44 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

45 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 45

46 46

47 Enabling Legislation Recommendation: 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

48 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 48

49 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.

50 Pursue Enabling Legislation Apology protections Timely notice with sharing of all pertinent medical records Tie to Payment Reform Legislation and as Independent initiative 50

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