Making Patient Safety the Centerpiece of Medical Liability Reform
Raymond
Hillary Rodham Clinton, and Barack Obama
We have visited doctors and hospitals throughout the country and heard
firsthand from those who face ever-escalating insurance costs. Indeed,
in some specialties, high premiums are forcing physicians to give up
performing certain high-risk procedures, leaving patients without
access to a full range of medical services. But we have also talked
with families who have experienced errors in their care, and it has
become clear to us that if we are to find a fair and equitable
solution to this complex problem, all parties — physicians, hospitals,
insurers, and patients — must work together. Instead of focusing on
the few areas of intense disagreement, such as the possibility of
mandating caps on the financial damages awarded to patients, we
believe that the discussion should center on a more fundamental issue:
the need to improve patient safety.
We all know the statistic from the landmark 1999 Institute of Medicine
(IOM) report that as many as 98,000 deaths in the United States each
year result from medical errors.1 But the IOM also found that more
than 90 percent of these deaths are the result of failed systems and
procedures, not the negligence of physicians. Given this finding, we
need to shift our response from placing blame on individual providers
or health care organizations to developing systems for improving the
quality of our patient-safety practices.2
To improve both patient safety and the medical liability climate, the
tort system must achieve four goals: reduce the rates of preventable
patient injuries, promote open communication between physicians and
patients, ensure patients access to fair compensation for legitimate
medical injuries, and reduce liability insurance premiums for health
care providers. Addressing just one of these issues is not sufficient.
Capping malpractice payments may ameliorate rising premium rates, but
it would do nothing to prevent unsafe practices or ensure the
provision of fair compensation to patients.3
Studies show that the most important factor in people's decisions to
file lawsuits is not negligence, but ineffective communication between
patients and providers.4 Malpractice suits often result when an
unexpected adverse outcome is met with a lack of empathy from
physicians and a perceived or actual withholding of essential
information.4 Stemming the causes of medical errors requires
disclosure and analysis, which create tension in the current liability
climate.
The current tort system does not promote open communication to improve
patient safety. On the contrary, it jeopardizes patient safety by
creating an intimidating liability environment. Studies consistently
show that health care providers are understandably reticent about
discussing errors, because they believe that they have no appropriate
assurance of legal protection.5 This reticence, in turn, impedes
systemic and programmatic efforts to prevent medical errors.
To overcome the impasse in the debate on medical liability, we have
introduced legislation, the National Medical Error Disclosure and
Compensation (MEDiC) Bill (S. 1784), to direct reform toward the
improvement of patient safety. Our proposed MEDiC program provides
grant money and technical assistance to doctors, hospitals, insurers,
and health care systems to implement programs for disclosure and
compensation. The MEDiC model promotes the confidential disclosure to
patients of medical errors in an effort to improve patient-safety
systems. At the time of disclosure, compensation for the patient or
family would be negotiated, and procedures would be implemented to
prevent a recurrence of the problem that led to the patient's injury.
Main Provisions of the National Medical Error Disclosure and
Compensation (MEDiC) Bill
Office of Patient Safety and Health Care Quality
This legislation would create an Office of Patient Safety and Health
Care Quality within the Department of Health and Human Services. The
director of this office will be responsible for establishing a
National Patient Safety Database, conducting data analyses to inform
policy and practice recommendations, establishing and administering
the National Medical Error Disclosure and Compensation (MEDiC)
program, and supporting studies related to MEDiC and the medical
liability system.
MEDiC Program
The MEDiC program would promote open communication between patients
and providers; reduce the rates of preventable medical errors; ensure
patient access to fair compensation for medical injury, negligence, or
malpractice; and reduce the cost of medical liability insurance.
The MEDiC program would provide federal grant support and technical
assistance for doctors, hospitals, and health systems that disclose
medical errors and problems with patient safety and offer fair
compensation for injuries or harm. Participants would submit a safety
plan and designate a patient-safety officer, to whom these disclosures
and notices of related legal action would be reported. If a patient
was injured or harmed as a result of medical error or a failure to
adhere to the standard of care, the participant would disclose the
matter to the patient and offer to enter into negotiations for fair
compensation.
The terms of negotiation for compensation ensure confidentiality,
protection for any disclosure made by a health care provider to the
patient in the confines of the MEDiC program, and a patient's right to
seek legal counsel; they also allow for the use of a neutral third-
party mediator to facilitate the negotiation. Any apology offered by a
health care provider during negotiations shall be kept confidential
and could not be used in any subsequent legal proceedings as an
admission of guilt if those negotiations ended without mutually
acceptable compensation.
Participating insurance companies and health care providers would be
required to apply a percentage of the savings they achieve from
lowered administrative and legal costs to the reduction of premiums
for physicians and toward initiatives to improve patient safety and
reduce medical errors.
Grants
The director would develop and oversee grant programs to encourage
participation in the MEDiC program and support patient-safety
initiatives. Funding may be used to develop and implement
communication training programs for health care providers; to improve
the use of information technology for the reporting, collection, and
analysis of patient-safety data; to facilitate the tracking and
analysis of local and regional patient-safety trends; and to develop
and disseminate safety training guidelines and recommendations.
Studies
The Office of Patient Safety and Health Care Quality would conduct
three studies: an analysis of the patient-safety data from its new
database and other sources to determine performance and systems
standards, as well as safety tools and best practices for health care
providers; an analysis of the medical liability insurance market to
determine historical and current legal costs related to medical
liability, factors leading to increased legal costs, and which, if
any, state liability insurance reforms have led to stabilization or
reduction in medical liability premiums; and a database study of cases
that were not successfully negotiated through the new program, to
determine the reasons, trends, and effects of such outcomes.
Under our proposal, physicians would be given certain protections from
liability within the context of the program, in order to promote a
safe environment for disclosure. By promoting better communication,
this legislation would provide doctors and patients with an
opportunity to find solutions outside the courtroom. In return, MEDiC
program grantees would be required to use savings achieved by reducing
legal defense costs to reduce liability insurance premiums and to
foster patient-safety initiatives.
The MEDiC program is based on model programs around the country that
have demonstrated successful approaches to protecting both patients
and doctors while improving the quality of care. A number of hospital
systems and liability insurance providers have already adopted a
policy of robust disclosure of medical errors. These programs have
been successful in reducing administrative and legal costs for
providers, insurers, and hospitals. Surveys also show greater trust in
and satisfaction with health care providers on the part of patients.
Ultimately, through these programs, disclosure of medical errors has
resulted in the filing of fewer malpractice suits, a reduction in
litigation costs, accelerated provision of compensation to patients,
and increases in the numbers of patients who are compensated for their
injuries.
The link between the medical liability environment and patient safety
has been illustrated by a number of these programs. In 2002, the
University of Michigan Health System launched a program with three
components: acknowledge cases in which a patient was hurt because of
medical error and compensate these patients quickly and fairly;
aggressively defend cases that the hospital considers to be without
merit; and study all adverse events to determine how procedures could
be improved. Before August 2001, the organization had approximately
260 claims and lawsuits pending at any given time. As of August 2005,
the number had dropped to 114 (see graph). The average time from the
filing of a claim to its resolution was reduced from approximately 21
months to less than 10 months. Annual litigation costs dropped from
about $3 million to $1 million. The health care system has begun to
reinvest these savings in the automation of its patient-safety
reporting systems. Since the implementation of this program, the
University of Michigan Health System has expanded the number of
practicing clinicians and faculty members in high-risk fields such as
obstetrics–gynecology and neurosurgery.
Results of Medical Error Disclosure Program at the University of
Michigan Health System.
In 1987, after two malpractice cases that together cost it more than
$1.5 million, the Veterans Affairs (VA) Hospital in Lexington,
Kentucky, adopted a policy of robust disclosure of medical errors,
with early offers of compensation to its injured patients. As a result
of its 19 years of experience with this approach, the hospital has
liability costs well below those of comparable VA hospitals. Data show
that average settlements were approximately $15,000 per claim, as
compared with more than $98,000 at other VA institutions. The policy
has also decreased the average duration of cases, previously two to
four years, to two to four months, as well as reduced costs for legal
defense. These are just two examples of such programs, but their
results are consistent with those of other organizations that have
adopted a similar model.
We realize that the implementation of the MEDiC model will not come
without effort. A safe and appropriately confidential environment must
be created that allows open communication between physicians and
patients about adverse outcomes. Initially, medical-error transparency
may be difficult to foster. However, organizations that have put
disclosure programs into practice have been effective in resolving
disputes in a less adversarial manner, providing fair compensation,
and improving patient care. We believe that the MEDiC Bill provides a
common-sense solution that avoids the political pitfalls that have
hampered other efforts to reform the medical liability system.
Source Information
Senator Clinton (D-N.Y.) and Senator Obama (D-Ill.) are coauthors of
the MEDiC bill.
An interview with Richard Boothman of the University of Michigan
Health System can be heard at www.nejm.org.
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