Accountability after Medical Injury: Recent Developments and Future Directions

1. Accountability after Medical Injury: Recent Developments and Future Directions Thomas H. Gallagher, MD Professor of Medicine, Bioethics & Humanities Director, UW Medicine Center for Scholarship in Patient Care Quality & Safety Director, Program in Hospital Medicine University of Washington

3. Fear of unpredictable, punitive response chills provider reporting of adverse events Hampers efforts to learn, prevent recurrence System does not serve patients’ needs Information Acceptance of responsibility Timely compensation Prevention of recurrences System stresses providers financially and emotionally The Accountability Gap

4. Only modest efforts to involve families as partners in preventing and resolving injuries Reform debates heavily driven by providers’ and insurers’ concerns Little understanding of what accountability actually means to patients Where’s the Patient?

5. What Would an Accountable System Look Like? • Healthcare institutions and providers: • Recognize that event has occurred • Disclose it effectively to the patient • Proactively make the patient whole • Learn from what happened • In a healthcare delivery environment that: • Prospectively monitors quality of care • Identifies unsafe providers and employs effective remediation • Spreads learning across institutions • In a legal/regulatory environment that supports providers in “doing the right thing”

6. Recent Developments • The disclosure gap persists • CRPs • LSAE disclosure • Communicating with patients about other healthcare workers’ errors • Collective Accountability

8. Quality of Actual Disclosures • COPIC • 3Rs program for disclosure and compensation, 2007-2009 • 837 Events • 445 patient surveys (55% response rate) • 705 physician surveys (84% response rate)

9. Event Severity

10. Quality of Disclosure

11. Two CRP Models

12. No need for legislation Can be led by physician champions and other insiders More palatable to patient and attorney organizations Can be tailored to local institutional culture Governed by market forces The Appeal of Institution-Led Reform

13. The CRP Approach Catches On First wave: • Lexington VA • Early Settlement Programs: • University of Michigan • UIC • Stanford • Reimbursement programs: • COPIC • Coverys • West Virginia Mutual Second wave: • HealthPact partners (Washington) • NYC hospitals • Massachusetts Alliance for Communication and Resolution following Medical Injury (MACRMI) • 10 Illinois hospitals • University of Texas • Ascension Health

14. Third Wave

15. How Are LSAEs Different? • Like individual adverse events • Type, cause, severity vary widely • Strong patient expectations for disclosure, learning • Unlike individual adverse events • By definition, involve multiple patients (sometimes thousands) • Hard to keep quiet • High potential for negative impact on reputation of organization • Responding appropriately is highly resource intensive • Many represent near misses • Don’t know which patients are affected until investigation complete • Primary harm may be anxiety caused by disclosure itself

16. How Can Institutions Effectively Link Disclosure Strategy with LSAE type? • LSAE with low potential for harm • Primarily mailed disclosure • LSAE with high potential for harm • Primarily direct, in-person disclosure • However… • Patient perception of severity of harm can vary dramatically from that of the institution • When media gets involved, they essentially provide written disclosure to entire community • For high harm event, this alerts potential LSAE recipients before institution can contact them directly • Part of how patients judge LSAE is by watching how institution handles notification, response • Tsunami of anxious patients calling institution after seeing media report can overwhelm based laid plans for response

17. Matching Disclosure Content and Nature of LSAE • The “ick factor” • Contaminated endoscopes • Duke hydraulic fluid case • Greater specificity about exactly what happened, plans for preventing recurrences can persuade patients, public that institution has responded appropriately • But feels to some institutions like admission of liability • Blame is natural reaction to adverse events, increases absent evidence of robust response • Benefits of public partnership in response with external entities (public health, CDC)

18. How Proactive Should the Media Strategy Be? • Assume media coverage of LSAE is inevitable • The more proactive the strategy, the better • Provide press release, prep organizational leaders and external partners to talk to media • Best media strategy will not lead to positive story, just one that is less negative, not as visible, and goes away quickly • Almost impossible to recover from combination of LSAE plus botched disclosure/ “cover-up”

20. Should I Talk to Involved Clinician? • Discuss what happened, what to say to patient • Easier said than done • Fear of how colleague will react • Strong cultural norms around loyalty, solidarity, tattling • Reluctance to acquire unfavorable reputation, or disrupt are relationships • Power differentials • Dependence on colleagues for referrals • Some clinicians use chart to document concern without confronting colleague

21. Maybe My Institution Could Help • Clinicians worry that reporting event to institution could trigger unpredictable, potentially punitive response • Or that no action will be taken • Clinicians may have different malpractice insurers • Many clinicians work in small practices without ready access to institutional resources

22. What Should I Say To The Patient? • Concerns about destroying patient trust in colleague • Fear of triggering litigation • Subjecting colleague to conversation with angry patient is one thing • Subjecting colleague to potential lawsuit is much more worrisome • Unclear how state apology/disclosure laws apply • No evidence regarding how to disclose other clinicians’ error without triggering claim

23. What happens currently? • When faced with another healthcare workers’ error, most providers • Hesitate to discuss event with the involved provider, especially when at outside institution • Worry that reporting event to institution could trigger punitive, unpredictable cascade • Are reluctant to tell the patient • If event mentioned at all, vague language used and patient left to “connect the dots”

24. Key Principles • Patients and families come first • Explore, don’t ignore • Institutions should lead

25. Patients and Families Come First • Concern about collegial relationships do not obviate patient’s right to know what happened • Patients and families should not have to dig for information • Patients and families will need financial help after serious error • Can’t access compensation without knowing what happened • The tort system is dysfunctional and may not treat physicians fairly • Yet professionalism calls on physicians to put the patient’s needs first • When disclosure is ethically required, fact that it is difficult should not stand in the way

26. Explore, Don’t Ignore • Before talking to patient about potential error involving colleague, first obligation is to obtain the facts • Patient’s interests are not served by speculation • Colleagues deserve chance to correct misconceptions, participate in disclosure • Strengthened commitment to exploring potential errors with colleagues is needed

27. Institutional support • Disclosure coaches • Role modeling by senior colleagues • Formal venues to address quality concerns • M&M, peer review • Informal approaches • Curbside consultation with risk/quality expert • Ensure that relevant QI/peer review protections in place

28. Why Does the Bad Apple Model Persist? • Check the mirror • Blame feels good • “I wouldn’t/couldn’t/can’t see myself doing that” • Competence is not binary • Exists on spectrum across and within individuals • Who are the bad apples? Physicians who can’t or won’t learn from mistakes

29. Collective Accountability • Transparency with each other, patient is shared professional responsibility • Need to share, act on information together • Requires that we turn towards, not away from colleagues involved in potential error

30. What Does Accountability Look Like? • After medical injury • Meet needs of affected patient • Demonstrated learning