Mello and Gallagher describe “disclosure-and-offer” approaches,27
two variants of which are presently used by one or more private health institutions or insurers in the U.S. The first offers tightly limited “reimbursement” to patients for expenses and loss of time due to iatrogenic injury. It is available only when fault cannot clearly be ascribed to the provider, and does not foreclose the possibility of suit. The second functions like an arbitration system. The provider only offers settlement of injury, lost wages, lost time, and other damages if its investigation finds that the care provided was likely negligent, and if the patient agrees not to sue if she accepts the settlement. Mello and Gallagher find both promising, despite the systems’ patchwork nature, potentially problematic power dynamics, and difficulty in effective evaluation.
Evidence suggests these alternatives can make tremendous strides toward not only eliminating the “roulette” qualities of the tort system, but also in increasing trust and reconciliation between providers and patients and improving patient care – advancing the goals of professionalism while decreasing the likelihood, costs, and unpredictability of litigation. The University of Michigan Health System [UMHS], for example, realized significant declines in claims, lawsuits, and costs after adopting a medical error identification and disclosure system in 2001.28
Its pro-active approach, similar to a successful program pioneered by the Lexington, Kentucky Veterans Administration hospital, identifies patient injuries, investigates them internally and, where the investigation reveals avoidable error as the cause, offers a settlement to the patient and institutes quality control measures to help prevent a similar error in the future.29
With program implementation, UMHS’s monthly lawsuit initiation rate dropped from 2.13 per 100,000 patient encounters to 0.75 per 100,000. Resolution times decreased, and, while costs of claims that did not proceed to lawsuit remained largely unchanged, liability costs for claims going to suit declined from an average of over $400,000 to just over $225,000. The authors of the study believe much of the savings resulted from increased resources and attention devoted to patient safety improvement.28
UMHS offers this program despite Michigan’s lack of an “apology law” that protects from liability when a provider expresses sympathy for an adverse outcome.30
Rather, UMHS probably relies on its good reputation in the local legal system. Ample trust and goodwill generated through a good reputation is likely worth more in practice than the anonymous protection of a law. It suggests, however, that a disclosure system such as UMHS’s may function best for large health care entities. If a health provider is so small that it only rarely encounters avoidable error claims, it may not have enough contact with the legal system and local plaintiffs’ attorneys for its diligence and honesty in claims investigation to be assumed or trusted. Further research would be necessary to investigate this issue. Additionally, some larger providers may, despite future good intentions, be saddled with substantial community mistrust due to prior practices.
For such entities, it may be advisable not to adopt a disclosure program voluntarily, but only after a state has adopted a legal framework for doing so. Appropriate legislative frameworks enacted at the state level are generally superior as public policy to piecemeal approaches. While awaiting the passage of state laws protecting disclosure, more vulnerable institutions may get a head start toward professionalism by improving and expanding their internal safety and quality assurance mechanisms. The results of several of the medical liability reform demonstration programs recently funded by the Department of Health and Human Services under the Patient Protection and Affordable Care Act may offer some insights into next steps.31
Encouraging results should be quickly translated into broader action.
Examples such as UMHS demonstrate a clear path forward toward systems which embody the highest standards of physician professionalism, and which simultaneously possesses most of the features required to meet physicians’ own vital interests. Because the systems are demonstrably patient-centered, they ought to gain the support of a wide public coalition.