A new report outlines procedures that could ease the state's malpractice insurance crisis while improving patient safety and benefiting relatives, doctors and hospitals.
The report — from the Project on Medical Liability in Pennsylvania, an independent, nonpartisan effort supported by The Pew Charitable Trusts — notes that ineffective communication is often a primary reason patients and families sue. Citing extensive research, the report recommends open, meaningful communication by health professionals about medical errors and mediation to avoid costly lawsuits.
The results of the research come as Pennsylvania hospitals struggle to comply with a precedent-setting 2002 law requiring them to explain to patients or their relatives the circumstances and repercussions behind serious health complications or deaths caused by medical errors.
"These recommendations are designed to create a culture that supports candor, the free exchange of information, fair outcomes for patients and physicians and improved patient safety," said Carol Liebman, an expert in mediation at Columbia University Law School who co-wrote the report with Chris Stern Hyman, a lecturer at Columbia and partner in the Medical Mediation Group LLC.
The cost of medical malpractice insurance in Pennsylvania has spiked. Physicians in high-risk specialties are reported to have moved, closed their practices or retired, particularly in eastern Pennsylvania. At the same time, doctors and hospital officials fearful of lawsuits generally have shied away from candor, often enraging patients and relatives by offering only barebones explanations of errors and stonewalling. Research shows this situation creates a vicious circle: Anger often motivates patients or survivors to file medical malpractice suits.
The report, issued by the Demonstration Mediation Project, recommends four measures:
"Lawsuits take four or five years to resolve," Hyman said. "The costs — emotional and financial — are debilitating for both sides. The type of mediation that we recommend, where both sides get together to reach a settlement, not only results in fair compensation for patients or families under a much quicker timeline, but it also can bring changes in hospital procedures to improve safety, a result no court could order."
The medical profession long has recognized communications as a weak point among doctors — the organizations overseeing the medical licensing exams added a complex segment last year to test students' communications skills. In addition to defensiveness, the report says, the problem often rests in health-care professionals making assumptions or taking a patient's words at face value instead of trying to determine the true meaning behind a statement. Frustration and anger on both sides result.
The report recommends brief training sessions to familiarize health professionals with the complexities of meaningful communications and intensive two day trainings for physicians and other care givers who will serve as disclosure consultants. During the sessions, they learn how to formulate the right questions, to avoid defensiveness and to express concern about the issues at the center of a patient's statements, all techniques that tend to diffuse anger by making a person feel respected and understood.
But the training is not enough, the report says, because deaths or serious problems created by health-care professionals occur rarely for any one professional, so individual doctors use these skills infrequently and cannot keep the skills sharp. Instead, a team of hospital employees adept at communications should meet with the doctors and administrators involved in an error to anticipate questions and concerns, to formulate explanations that laymen can understand and to determine the best way to support the patient or family. A team member needs to accompany health-care professionals meeting with relatives to make sure they are heard and to identify any patient safety problems that need addressing, the report says.
The authors acknowledge that the third recommendation — offering a legitimate apology — holds risk, because most states allow plaintiffs to use doctors' statements as evidence.
"But the risks need to be weighed against the benefits," Liebman said. "There is growing research evidence that apologies reduce litigation, save money and have great benefits for patients, families and the health-care provider who made mistakes."
At the crux of the recommendations lies mediation, a technique already practiced by a handful of hospitals, including the Drexel University College of Medicine in Philadelphia. In all cases, the proceedings are voluntary. They remain confidential, meaning nothing said can be submitted into evidence, and patients unhappy with the results retain the option to go to court.
In many malpractice mediations using other mediation models, the focus is only on financial issues, and the two sides spend little time talking to each other as the mediators shuttle from side to side. When money is the only focus, the mediation sessions occur long after the error to give each side a chance to prepare a case.
The report recommends a far different approach. In this model, the two sides meet face-to-face and the mediator helps them gain understanding, assess the strength of their positions, explore non-economic proposals and reach a settlement together. Both sides have the opportunity to ask questions and to express feelings.
Without the need to gather "evidence," the session can occur within months of the error instead of years. And because the medical professionals hear the patients' and families' concerns and complaints, improvements to hospital procedure can result.
"Unlike the other approach, this type of mediation goes beyond financial terms," Hyman said. "When mediators encourage the participants to include other provisions such as a memorial lecture or staff training to avoid similar errors, both sides may feel that the resolution has given meaning to a tragic event," Hyman said.
While the embracement of the other model is good progress, this model has advantage--primarily starting a lot earlier in the process.
For the report, Liebman and Hyman spent two years reviewing extensive research on medical errors and their effects on patients and families as well as health-care professionals. The authors also conducted training sessions and in-depth interviews at three hospitals and two mediation sessions at one.
The Project on Medical Liability in Pennsylvania provides Pennsylvania policy makers with objective information about the medical liability system; broadens participation in the medical liability debate to include new constituencies and perspectives; and focuses attention on the relationship between medical liability and the overall health and prosperity of the Commonwealth. The Project is working with leading health policy experts from across the nation and will continue to publish both original research based on new data and expert analyses. The Project will generate information from a broad range of perspectives, without promoting the agenda of any of the stakeholders in the debate.
The Pew Charitable Trusts (pewtrusts.org) serve the public interest by providing information, policy solutions and support for civic life. Based in Philadelphia, with an office in Washington, D.C., the Trusts make investments to provide organizations and citizens with fact-based research and practical solutions for challenging issues. With approximately $4.1 billion in dedicated assets, in 2003 the Trusts committed more than $143 million to 151 nonprofit organizations