Publish Date: January 28, 2020

A systematic review of 37 studies of malpractice deterrence  published between January 1, 1990, and November 25, 2019 was conducted to examine the association between malpractice liability risk and health care quality and safety. This review found that most studies suggest that higher risk of malpractice liability is not significantly associated with improved health care quality. The findings also suggested that greater tort liability was not associated with the improvement of quality of care.

Publish Date: January 28, 2020

This issue presents a thorough and rigorous analysis of recent research and draws findings from 37 studies.  It conclude that increased liability exposure, such as numbers of malpractice claims or changes to state malpractice laws, was not associated with improvement in the quality of patient care.

MA 2012 Payment Reform Legislation (Ch 224) – Key Liability Provisions

The Collaborative for Accountability and Improvement and the Foundation for Healthcare Quality hosted a two-day retreat in Seattle, Washington (09/2017) in which administrators and healthcare providers discussed ways to advance communication and resolution programs (CRPs) and other resources in Northwest Hospitals to increase patient safety and communication among hospital leadership, attorneys, and health insurers.

The Oregon Patient Safety Commission (OCCRP) seeks to advance, support, and encourage patient safety through education, shared learning, and improved transparency in Oregon. It is a multi-faceted, semi-independent state agency created by the state legislature to further patient safety in the state. The OCCRP operates multiple mission-driven programs, which include the Patient Safety Reporting Program, Early Discussion and Resolution, and various quality improvement initiatives.

Oregon Resolution of Adverse Health Care Incidents Act (2013)

Communication-and-resolution programs (CRPs) help healthcare providers and insurers effectively communication with patients when  medically adverse event occurs, as well as offer the necessary steps to take to give compensation. Researchers examined the effectiveness of CRP implementation in two Massachusetts hospitals. They concluded that, when the hospitals followed the CRP protocols, there were no drastic increases in liability fees associated with adverse health outcomes. Thus, CRPs helped these hospitals proactively handle adverse incidents and any related litigation fees.

Marx discusses uses a legal viewpoint to discuss how to be more tolerant of errors in the workplace, while also holding people accountable for their mistakes. He outlines four important behavior concepts, and how they can be applied to the healthcare system to decrease risk of adverse events and increase accountability: malpractice, understanding violations, ignorance, and mishaps.

The Risk Authority Stanford is a healthcare risk management organization established at Stanford University School of Medicine, Stanford Children’s Health, and Stanford Health Care. This organization developed the Process for Early Assessment, Resolution and Learning (PEARL), a communication-and-resolution program (CRP) aimed to approach unexpected adverse incidents with respect and honesty, which also decreasing litigation fees and overall risk. The Risk Authority also offers solutions and services to medical organizations and healthcare systems outside of Stanford.

The authors of this study analyzed the importance of healthcare professionals being transparent in medical malpractices with their patients in the Texas healthcare system. The authors found that medical mishap litigation helped significantly reduce suing and other damages. The authors also emphasized the importance for healthcare systems to work with attorneys, policy makers, and patients to help develop methods to be more transparent about medical mishaps and enforce proactive mediation.

Dr. Jo Shapiro of Brigham and Women’s Hospital is interviewed about disclosure, peer support, and resilience following medical error on Ireland’s national public radio, RTÉ Radio 1 (July 9, 2017).

Data from case studies support the fact that apologies from physicians to patients promote reconciliation and forgiveness. To promote a culture that supports apologizing and disclosure, 39 states, including Washington, D.C., are enacting apology policies to decrease the litigation problems surrounding medical malpractice. This article is delves into the implications surrounding the enactment of these laws. The article is divided into four parts. The first part of the article explains why states are passing apology laws and how they can help reduce lawsuits associated with medical malpractice. The second part presents data that supports the effectiveness of apology laws. The third part illustrates how apology laws affect various legal outcomes, especially the probability that medical providers will be presented with litigation fees. The fourth part of the article delves into the legal significance of their results. It is important to note that apology laws do not replace communication-and-resolution programs (CRPs), nor do they mitigate the existing data that these programs are effective in lowering the incidence rates of medical error claims.

In April 2012, Glenn Clarkson died after a medical error at a rural Kansas hospital. Melissa and Nancy Clarkson describe the three-and-a-half-years of work it took for them to learn what happened in his medical care. Filmed at the Communication and Resolution Program (CRP) Training.

The Collaborative for Accountability and Improvement is a network based at the University of Washington, Seattle, composed of the physicians, attorneys, and insurers who pioneered the earliest CRPs in the United States. It is our belief that communication-and-resolution programs (CRPs) are an essential strategy for preventing medical errors and cultivating high-quality, patient-centered healthcare. Our mission is to radically accelerate the adoption of CRPs nationally and internationally, particularly through education, training, and hands-on support.

In The Field Guide to Understanding ‘Human Error,’ Sidney Dekker discusses how organizations can successfully deal with perceived “human error” without implementing new rules, punishing people, or requesting compliance. Dekker discusses how people embody “the Bad Apple Theory,” which states that an institution would be safe and reliable albeit a few irresponsible individuals in it. To combat this theory and “human error,” Dekker encourages organizations to learn to understand mistakes, how to improve investigative processes, and how to increase the safety climate of the workplace. He does this by offering specific strategies that encourage organizations and employees to think creatively to foster a safe environment that mitigates “human error.”

This report from the Betsy Lehman Center details two sets of research findings and proposes a coordinated response through which Massachusetts’s providers, policymakers, and public can accelerate safety and quality improvement and lead the nation on this urgent health care challenge.

University of Michigan Health System developed the Michigan Model. This approach involves reducing and acknowledging medical errors through open communication between the patient and health institution, peer-reviewing the complaints to analyze the cause of the adverse event and how to prevent it in the future, and meeting with the patient and legal counsel to discuss the adverse event. With these implementations, the University of Michigan Health System successfully helped reduce the number of malpractice accusation against physicians, medical error fees, and total time it takes to manage a malpractice claim. Thus, the University of Michigan Health System is a leading innovator in increasing patient care and safety while also decreasing the adverse outcomes associated with medical malpractices.

The Medstar’s Patient Safety and Quality Program included this video in their patient safety and care program. This video illustrates the story of Michael Skolnik, who lost his life due to medical malpractice. The error involved the surgeon not being completely transparent with the patient or his family about the surgical procedure. This video emphasizes the importance of shared decision making between patients, families, and physicians to avoid future adverse medical outcomes, especially ones in which lives are lost.

The objective of this study was to determine whether a communication-and-resolution program (CRP) to adverse patient events is correlated with changed in medical litigation actions and outcomes.  Researchers found that the implementation of a communication and optimal resolution (CANDOR) program was most successful. These programs consist of methods for effectively identifying an event, investigation, resolution, and care for healthcare providers. The CANDOR program was correlated with long-lasting fiscal and clinical improvements. It also helped increase incident report rates, as well as decrease the number of litigation and malpractice claims and fees.

The purpose of this study was to determine whether a communication and optimal resolution (CANDOR) program was effective in reducing the number of health liability processes and associated adverse outcomes. Researchers found that this program helped significantly increase the number of incident reports received, as well as decreased the litigation, settlement, and self-insurance fees associated with medical malpractices and adverse events.

Patient and family emotional harm after medical errors may be profound. At an Agency for Healthcare Research and Quality (AHRQ) conference to establish a research agenda on this topic, the authors used visual images as a gateway to personal reflections among diverse stakeholders. Themes identified included chaos and turmoil, profound isolation, organizational denial, moral injury and betrayal, negative effects on families and communities, importance of relational skills, and healing effects of human connection. The exercise invited storytelling, enabled psychological safety, and fostered further collaborative discussion. The authors discuss implications for quality/safety, educational innovation, and qualitative research.

The Joint Commission’s Framework for Root Cause Analysis (RCA) and Action Plan offers a holistic outline of questions used for healthcare organizations to analyze adverse events in the workplace. Questions include identifying specific protocols in the procedure, external factors, staffing numbers, and other factors that could have potentially influenced the adverse outcome.

The Foundation for Health Care Quality is a Seattle-based nonprofit foundation that offers third party sources to everyone involved in healthcare, including physicians, patients, government organizations, and payers. The institution offers various resources to promote healthcare quality and patient care, such as assessment and communication-and-resolution (CPP) programs.

Michelle Mello, the Director of the Program in Law and Public Health at the Harvard School of Public Health, analyzed the effectiveness of communication-and-resolution programs (CRPs) in this article. She found that these models are efficient at addressing healthcare liability issues revolving around adverse medical outcomes. These programs offer a guide for healthcare professionals on how to disclose medical errors to their patients, while also developing ways to prevent future adverse events.

When a patient is unintentionally harmed during medical treatment, how should organizations respond?

Not that long ago, steps like these were unthinkable and, from a risk manager’s perspective, totally unwise. Today these practices are at the core of what are called communication and resolution programs (or CRPs), and their architects say there’s been a significant uptick in US health systems using them. Our guests are two leading experts on CRPs, Tom Gallagher and Allen Kachalia. They and a team of researchers have been teasing out the reasons why so many health care leaders are committed to the principles of CRPs, but hesitant to deploy the practices.

If you’ve been wondering what’s been going on with CRPs and new ways forward, this WIHI is for you.