In the five years since a number of pilot hospitals in Massachusetts began gathering data on a new kind of restitution system for medical harm, Dr. Alan Woodward has seen nothing to change his mind that it makes sense and will eventually be a national model.
The name, though, has changed, and for important reasons.
Back then, the approach was called ‘disclosure, apology, and offer’ (DA&O), based on language hammered out in multi-year negotiations by representatives of the Mass. Medical Society (MMS), the Mass. Bar Assoc., and the Mass. Academy of Trial Attorneys, all of whom agreed that the change would both improve patient safety and reduce the volume of unnecessary and protracted lawsuits — and perhaps lower ever-spiraling insurance costs for physicians.
At the heart of DA&O was a six-month, pre-litigation resolution period after a patient is allegedly harmed — a mandatory cooling-off period, essentially — during which time the patient (or his or her family) is allowed access to all pertinent medical records and full disclosure by the provider — and, importantly, the physician is allowed to issue a statement of apology which is inadmissible in court.
Today, those features remain at the heart of the model, which now goes by a different acronym: CARe, or ‘communication, apology, and resolution.’
“We changed the program from ‘disclosure’ to ‘communication’ because we thought disclosure implied one-way communication, and we wanted to imply a dialogue,” said Woodward, a past MMS president who is now among the leadership team at MACRMI, the Massachusetts Alliance for Communication and Resolution Following Medical Injury. “And ‘offer’ implied economic compensation, but for most people, restitution is much broader than just being compensated; it includes medical needs, psychosocial needs, making sure this does not happen to someone else — and still getting an apology.”
The openness built into CARe is perhaps its most striking feature, tearing down the walls doctors and patients erect when something goes wrong and legal action is pursued. Not only does it reduce frustration on both sides at a time when patients want answers, Woodward said, but it can also lead to discussions about what can be done differently next time, bolstering patient-safety measures going forward. And since malpractice cases drag on more than five years, on average, any resolution that can be negotiated without a lawsuit promises to significantly shorten the ordeal.
In the past five years, MACRMI has collected data from more than 1,000 cases of alleged medical harm at the pilot hospitals, including three in the Baystate Health system, and Woodward said they show that the CARe model does not lead to an increase in claims or costs. Now, the program is being expanded to more hospitals and a large physician group.
“The evidence is growing that this even helps the recruitment and retention of providers,” Woodward told HCN. “Their fear level goes down, and their practice satisfaction level goes up. In the future, that means a substantial advantage for institutions that use this open, honest approach when something goes wrong.”
Physicians describe the CARe approach as an improvement to the traditional tort system, which detractors say can lead to a culture of silence and a ‘deny and defend’ attitude in the medical community, impede improvements in patient-safety efforts, and motivate physicians to practice defensive medicine — ordering unnecessary tests, for instance — that contributes to higher healthcare costs.
Over time, the CARe model has incorporated a series of 10 best practices, Woodward noted, all based on transparency and respect:
• Encourage adverse event reporting of all kinds, and use multiple sources of information to identify adverse events;
• Provide coaching for clinicians to help them communicate with patients about adverse events;
• Have a rigorous model to assess and investigate adverse events;
• Support providers and keep them informed about the status of a case. Assigning an internal contact, like a patient-safety coordinator or a risk manager, to contact the provider at regular intervals works well;
• Support patients throughout the process, keeping them informed about the status of a case and managing their expectations of the process. Assigning an internal contact, like a patient-relations staff member, to contact the patient at regular intervals, works well;
• Have a mechanism for reporting the findings of the investigation to appropriate departments, and a process for developing and implementing recommendations from those findings. Lessons learned should be shared throughout the institution and across institutions as appropriate;
• Communicate the relevant findings of the investigation to the patient, and answer any questions they have. If the decision has been made that the standard of care was met or that there was no causation of harm, communicate it clearly while maintaining empathy for their injury. If the decision has been made that the standard of care was not met, communicate the mistakes and solutions to the patient clearly, and apologize;
• When compensation is warranted, encourage patients or their families to be represented by counsel. Any compensation that is offered should be fair;
• Resolution should be comprehensive. Resolving a case goes beyond an offer of compensation. It means that there has been open two-way communication with the patient, and that efforts have been made to meet the patient’s medical and psychosocial needs; and
• Consider a variety of ways to engage patients in post-event learning. Often the most important things to injured patients is being able to help prevent a reoccurrence of the same mistake. Patients may also be interested in educating others about their experience.
“We encourage patients and their families to have legal representation throughout the resolution process,” Woodward said. “This isn’t an effort to skimp the patient on compensation; we’re trying to provide a more holistic resolution than just economic compensation — and make sure the patient gets an aology, which they never get in a court situation.”
Michelle Mello of the Harvard School of Public Health wrote, in a 2012 description of the CARe (then DA&O) process, that compensation offers are typically arrived at by considering what the case would likely be worth in court.
“The objective is not to get families to settle for less than they would receive in a lawsuit, but to reduce the legal expenses associated with defending claims in court. The offer of compensation follows an apology of responsibility from the institutional representative and/or an involved clinician. The institution also explains what it will do to ensure that systemic problems are addressed and the injury will not happen again.”
The Massachusetts CARe model was developed following legislation that barred a doctor’s apology from being admissible in court, but Woodward believes states can adopt the model even without such legislation, although the majority of states do have such laws on the books today.
“This approach doesn’t have to include legislation, but our philosophy was, if we had this facilitating legislation, it would help overcome the anxieties that have inhibited this type of open, honest communication in the past,” he told HCN. “On the other hand, it can be implemented in states that don’t have any legislation to facilitate it.”
He noted recent interest in the CARe model, which was pioneered in Michigan about 15 years ago, in states ranging from Iowa to Utah to Oregon, and is cheered by increasing awareness of the philosophy.
“I believe and hope this model is accepted nationwide,” Woodward said. “More and more states are expressing interest, and I think we’re going to see momentum increase as the data becomes increasingly available that not only is this better for the patient and the provider, but it’s clearly what your grandmother told you: honesty is the best policy, and do unto others as you’d have done unto you.”