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Mass. hospitals promise openness, apologies

Mass. hospitals promise openness, apologies

Settlements part of Mass. coalition’s bid to curb lawsuits

By Liz Kowalczyk

Globe Staff

Seven Massachusetts hospitals plan to offer patients harmed by medical errors a prompt apology and financial settlements before they resort to lawsuits, part of a major new initiative to improve the state’s cumbersome medical malpractice system.

A coalition of physician, hospital, and patient groups planned to release details Wednesday of the initiative, called “Road Map to Reform,’’ which they predict will increase reporting of medical mistakes and cut down on lengthy litigation that drives up health care costs and fuels distrust between caregivers and patients.

The plan calls on doctors and nurses to fully disclose mistakes to patients and apologize. Three large insurers and a medical group have donated about $1 million to underwrite the initial work at the seven test hospitals, and the coalition hopes to implement the improvements statewide over the next several years.

“This is a fundamental transformation of the system,’’ said Dr. Alan Woodward, a retired emergency medicine physician who helped lead the coalition for the Massachusetts Medical Society, a large doctors’ organization. “The whole system has created secrecy and denial. We are trying to turn things around.’’

While many people believe doctors are ethically obligated to acknowledge mistakes, Woodward said they are often hesitant to do so because they fear lawsuits. At the same time, doctors practice “defensive medicine’’ by giving unneeded tests so that in the event of legal action, they can show they did everything possible. When cases do end up in court, Woodward said, it takes 5 1/2 years on average in Massachusetts for patients to be awarded money. During that time, caregivers often are told not to discuss the case with anyone, especially the patient.

Patients who accept the financial settlement surrender their right to sue, but those who decline the settlement can pursue legal action.

The hospitals that will test the initiative include Beth Israel Deaconess Medical Center in Boston, Beth Israel Deaconess Hospital-Needham, Beth Israel Deaconess Hospital-Milton, Baystate Medical Center in Springfield, Baystate Franklin Medical Center in Greenfield, Baystate Mary Lane Hospital in Ware, and Massachusetts General Hospital.

Anyone, including doctors, nurses, patients, and families, can report a suspected error. The hospital will conduct a “root cause analysis’’ to determine if caregivers or hospital policy or systems were at fault. If they were, caregivers will apologize, and the hospital will work with hospital and physician malpractice insurers to determine the amount of compensation to offer the patient for injuries and follow-up care.

If a patient experiences an unpredictable reaction to a medication that caregivers could not foresee, that probably would not result in a settlement offer, said Dr. Kenneth Sands, senior vice president for health care quality at Beth Israel Deaconess Medical Center. But if a patient is harmed during surgery because caregivers did not ensure they were performing the correct operation, the patient would be entitled to compensation.

To increase trust in the system, hospitals will encourage patients to hire a lawyer to evaluate whether an offer is fair. If patients are not satisfied with a proposed settlement, they retain their right to sue the hospital and caregivers. Researchers from the Harvard School of Public Health will evaluate the results of the pilot program.

The Massachusetts coalition is pushing for legislation that will help it implement the changes, including a mandatory six-month “cooling-off period’’ after an error occurs before a patient can file a lawsuit. The coalition also wants to make caregiver apologies inadmissible in the event of a lawsuit, as a way to further encourage contrition.

Governor Deval Patrick included both measures in legislation he filed last spring to control health care costs, and the coalition is lobbying for the measures to be included in House and Senate bills expected to be filed soon.

The coalition plans to propose legislation that would shield doctors from blame for mistakes attributed to hospital policy. If a physician is at fault, settlements would be part of that physician’s public record with the Massachusetts Board of Registration in Medicine and the National Practitioner Data Bank.

Mistakes caused by hospital policy are public through the Department of Public Health and would remain so. Now, settlements paid out by a doctor’s malpractice carrier are part of the physician’s public record,whether the doctor caused the error or not, Woodward said.

The coalition, which developed the road map with a $300,000 federal grant, has drawn heavily from a plan adopted by the University of Michigan Health System 10 years ago. The system’s widely respected approach of disclosure, apology, and settlement offer did not increase lawsuits and litigation costs as many providers feared.

The number of lawsuits filed per month dropped by one-half, and the time to resolve all claims fell from one year and four months to less than a year, according to a 2010 study published in the Annals of Internal Medicine by researchers at Brigham and Women’s Hospital in Boston. Spending on legal defense fell 60 percent.

Settlement offers to patients harmed at the University of Michigan have reached millions of dollars, similar to what a seriously injured person might win in court, Woodward said.

Linda Kenney – president and founder of Medically Induced Trauma Support Services, a nonprofit organization for patients harmed during medical care -said it is important for patients participating in this new initiative to have attorneys “to make sure the patient is getting what they are entitled to.’’

“The medical malpractice insurers have tons of attorneys on retainer,’’ said Kenney, whose group belongs to the new Massachusetts coalition.

Beyond that, Kenney, who became involved in patient advocacy after a life-threatening anesthesia accident she experienced at Brigham and Women’s in 1999, said patients also want emotional support. For some, that means participating in committees directing improvements at the hospital.

“Sometimes, it’s not about the money,’’ she said. “They want to be part of the change.’’

Andrew Meyer, a Boston malpractice attorney who represents patients, said he has concerns about the initiative. “For the most part, malpractice insurers are looking for a discount from fair compensation’’ by making an early offer, Meyer said. But “if a patient’s rights are not limited in any way, I have no issue with an attempt at early resolution. Cases just drag on for years.’’

The coalition, which includes Baystate Health in Springfield, the Massachusetts Coalition for the Prevention of Medical Errors, and the Massachusetts Hospital Association, listed 12 obstacles to adopting the system, with “physician discomfort with disclosure’’ and fear of increased liability topping the list.

That is why a major component of the road map is education for hospital executives and trustees, caregivers, and the public.

Sands said that doctors and nurses have gotten better at disclosing errors in the past five years, as the success of the Michigan program spread. But efforts remain uneven. “It’s hard to look somebody in the eye and say ‘We didn’t meet a basic expectation and it’s our fault,’ ’’ he said.

Liz Kowalczyk can be reached at