When a woman had gall bladder surgery at a Massachusetts hospital in 2013, doctors noticed something suspicious on a CT scan that they thought could be ovarian cancer. But the recommendation that the patient get a pelvic ultrasound fell through the cracks. Months later, she was diagnosed with stage 3 ovarian cancer.
Normally, this type of medical mistake could mark the start of a protracted malpractice lawsuit. But in Massachusetts, where medical, legal and consumer groups have worked together in support of a recently enacted law that tries to preempt litigation by establishing a process and timeframe for discussing mistakes, that’s not what happened, according to her attorney who recounted the case in an interview.
The Massachusetts State House
The law mandates that people give health care providers six months notice if they intend to sue. The woman’s lawyer notified the hospital of the mistake and the harm it had caused her: A delay in diagnosis that may have led to more extensive cancer treatment and, arguably, a higher risk that the cancer will recur.
Hospital officials, who had 150 days to respond, determined that their actions hadn’t met the standard of care. The hospital arranged a meeting between the woman and one of their physicians to talk about why the error occurred and the measures being taken to make sure it won’t happen again. The physician apologized, and soon after the woman accepted a financial settlement from the hospital.
The whole process took about a year, far less time than a drawn-out legal battle would have involved, says Jeffrey Catalano, the Boston attorney who represented the woman but declined to provide identifying details in the case.
“The hospital did the right thing,” he says. “My client felt really good about it. She felt like she was heard.”
Traditionally, medical liability reform has focused on laws that set caps on the dollar amount that plaintiffs can receive in damages. But interest in non-traditional types of medical liability reform has been growing, spurred on by dissatisfaction with so-called “deny and defend” adversarial systems that often result in lengthy and expensive legal proceedings when a medical error occurs.
In the national health care debate, the issue has been a key dividing line between Democrats and Republicans. The GOP generally supports capping damage awards as a way to rein in frivolous medical malpractice lawsuits and keep health care costs down. Democrats, supported by the trial lawyers lobby, argue that the Republican strategy is ineffective and leaves patients who have been injured with inadequate recourse. After the health law passed, President Barack Obama offered to work with Republicans on the issue. In 2010, his administration awarded $23 million in planning and demonstration grants around the country as part of a patient safety and medical liability reform initiative.
Boston’s Beth Israel Deaconess Medical Center and the Massachusetts Medical Society received a planning grant for $274,000 to develop a roadmap for a statewide communication, apology and resolution (CARe) system modeled after a successful program at the University of Michigan.
“Our effort was to take a model that had been very successful in a closed [health care] system and see if we could create an environment to implement it in a much broader way,” says Dr. Alan Woodward, a retired emergency physician who chairs the Massachusetts Medical Society’s Committee on Professional Liability.
Communication and resolution programs are gaining in popularity. Advocates emphasize moving quickly when a medical error is made to discuss it with the patient and the patient’s family, apologize and, if the standard of care has not been met, offer compensation.
In Massachusetts, six hospitals joined a pilot project to implement the model. Medical, legal and consumer groups that had participated in developing the roadmap formed a health care alliance to exchange information and develop best practices, and provide support for the hospital pilot projects.
In turn, that state law bolsters the alliance’s efforts to change how medical injuries are addressed. In addition to the six-month “cooling off” period before a suit can be filed, the law requires that patients be told when medical mistakes are made that result in unexpected complications and allows providers to apologize for unanticipated outcomes without fear their words will be used against them in court.
While many health systems and states are experimenting with non-traditional forms of medical liability reform, Massachusetts’ efforts are among the more comprehensive.
The broad-based Massachusetts’ effort is modeled after the University of Michigan’s communication and resolution program. Since the program began in 2001, it had reduced the rates of average monthly new claims and average monthly lawsuits, while cutting the time to resolve disputes and legal costs, a 2010 study published in the Annals of Internal Medicine found.
Saving money shouldn’t be the primary motivation for adopting a program, says Richard Boothman, the chief risk officer for University of Michigan health system and the man who pioneered their program. Patient safety is the goal.
“The very best risk management is to not hurt anybody in avoidable ways, and the second best [strategy] if we do hurt someone is not to do it again,” he says.
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