FW: [IMPROVEDX] death certificates-litigation

Phillip Benton, MD, JD pgbentonmd at AOL.COM
Sat May 28 01:42:47 UTC 2016




Ruth, Brian, Harold, Bob at al:



First: disclosure, apology & offer programs would not cause claims or payouts to 'skyrocket' as Harold's 'experts' suggest – to the contrary, both numbers of claims and total payouts go down as previously cited works confirm (R. Boothman, et al; 2009, 2012). However, decrease in claims nationally may not be due to the forthright disclosure of D, A&O as it is to other factors described in Emory Law colleague Joanna Sheperd's Justice in Crisis (2012-13; http://ssrn.com/abstract=2147915); her comprehensive review of medical negligence liability and first nationwide survey of plaintiff's counsel has revealed the following:



 I.  Due to the high expenses of Med Mal cases ($50-250 K) and protracted time (3-5 yrs.) to resolve them: 

·         75% of lawyers surveyed reject over 90% of cases screened;

·         Threshold anticipated damages for accepting a case: $250,000 for a ‘sure thing’; $500,000 for a ‘maybe’, and $1 million or more for ‘long shot, but possible.’  (PGB’s stratification nomenclature);

·         Contingency fee attorneys disproportionately reject cases from lower‐income groups such as females, the elderly, children and minorities as they do not expect a sufficiently large recovery – tort reform caps on non-economic damages means that only those with proven high earnings-loss potential (economic damages) may have a chance to recover what they have lost because of injury from medical error. 



 II.  1% of the hospitalized patients suffer a medical error and only 2% of these seek legal recourse (Harvard Medical Practice Study, 1991); only 6% of negligently injured patients can get a lawyer to accept their case (survey). Tort Reforms reducing potential recovery make most legitimate cases economically unfeasible, thus leaving many legitimate victims (90-94%) without significant access to just compensation,



III.  As a result, Prof. Sheperd notes “. . . many legitimate victims of medical malpractice are unable to obtain legal representation and have no meaningful access to the civil justice system. . .. and without legal representation, most of these victims will not be compensated for the harm they suffer as a result of medical negligence." 



IV.  Does fear of legal sanctions provide adequate precautionary incentives for healthcare providers to reduce error?  Most studies have found no real influence of malpractice pressure on physician behavior except for higher costs of defensive medicine. The original IOM report (1999) of 44-98,000 preventable deaths per year from medical error, on systematic review in 2013 using the more sensitive 'Global trigger tool’, increased that estimate to 400,000 preventable deaths/yr., with 20X that number of serious harms. (James, JT, J Patient Saf 2013;9: 122Y128).



V. FINAL ASSESMENT:  Sorry Ruth, but low claims rates are not so much attributable to the prowess of ‘risk management’ as they are to the expense, inefficiency and inequity of an outdated system (lacking transparency, accountability and just compensation) of legally resolving disputes over medical errors.  Litigation delays and legal fees severely undermine the current medical malpractice liability system’s ability to achieve its compensatory and deterrent functions. As a result, many legitimate victims of medical malpractice are left with no legal representation and no meaningful access to the civil justice system. (And since the specifics of most resolutions are sealed 'Confidential,' others can learn nothing so medical error continues to increase. PGB addendum).
 Voluntary D, A&O is only a temporary fix; without dramatic changes, our medical liability tort system can never achieve its goals of injury prevention and ‘just’ compensation of patients wrongfully injured. 



Phillip G. Benton, MD, JD

Orthopedic Spinal Surgeon (ret), Atlanta Medical Center

Adjunct Professor, Emory Law School








-----Original Message-----
From: Ruth Ryan <ruthryan at COX.NET>
To: IMPROVEDX <IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG>
Sent: Wed, May 25, 2016 8:19 am
Subject: [IMPROVEDX] FW: [IMPROVEDX] death certificates-litigation



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Dear Brian,

 

Your 10% estimate may be as good as anyone’s.

 

Professional liability claims have been falling in recent years, as testified to by PIAA data and the personnel layoffs in claims departments of MPL companies. While certain hospitals have stated their claims costs are down since instituting disclosure programs, nobody claims this could explain the nationwide dropoff in claims.

 

All past evidence (mostly preceding disclosure programs) points to a fraction of medical errors leading to a claim of malpractice. Not much reason to suspect this has changed.

 

The largest study with the largest proportion of claims was a RAND Corp study published in 2010, finding a ratio of 3.7 claims per every 10 adverse events as measured by Joint Commission-designated Sentinel Events. Sentinel Events are indications of pretty notable harm. http://www.rand.org/content/dam/rand/pubs/technical_reports/2010/RAND_TR824.pdf

 

A not yet published small study in Virginia hospitals with a homegrown and unknown definition of adverse events found over 3% or reported adverse events result in claims (David Meyers, can you help me find that citation?)

 

And in answer to question about the litigiousness of poor populations, an old JAMA study found the poor are less likely to sue in the face of adverse events, not more. “Poor and uninsured patients are significantly less likely to sue for malpractice, even after controlling for the presence of medical injury.” Burstin HR et al. Do the poor sue more? JAMA 1993.

 

A surgical study found trauma patients are less likely to sue. Griffen FD et al. ACS Closed claims study. J Am Coll Surg 2007 which said, “no increased risk of a lawsuit  when caring for trauma patients, and the actual risk of a malpractice lawsuit was low.”

 

Two studies found despite being high utilizers, Medicare and Medicaid populations sue less than expected. Studdert DM et al. Medical Care 2000;38:250. Herdman R et al. Office of Technology Assessment, 1992.

 


Ruth

 

Ruth Ryan RN, BSN, MSW, CPHRM

Medical writer

Risk management/patient safety

Continuing medical education

Telephone (504) 256-8797

Email ruthryan at cox.net



 

 



From: BRIAN GOLDMAN [mailto:drhbg at ROGERS.COM] 
Sent: Tuesday, May 24, 2016 10:35 AM
Subject: Re: [IMPROVEDX] death certificates-litigation

 



When I was writing articles on medical malpractice in the early 1980s, a prominent personal injury lawyer in Canada once told me he thought no more than ten per cent of medical malpractice is discovered by patients and their survivors.  Any estimates in today's so-called disclosure culture?


 


Brian Goldman, MD, MCFP(EM), FACEP Mount Sinai Hospital, Room 206 600 University Avenue Toronto, ON M5G 1X5 416-822-5044 phone 416-586-4719 fax


 





On Tuesday, May 24, 2016 11:32 AM, Harold Szerlip <hszerlip at GMAIL.COM> wrote:

 





Although full disclosure is obviously the right thing that we all should do, whether or not it actually is  a sound business sense has been questioned. The majority of emdical errors rarely result in litigation. If hospitals and doctors are forthright some experts believe the amount of compensation would sky rocket.  


 



On Tue, May 24, 2016 at 5:34 AM, Bob Latino <blatino at reliability.com> wrote:





FYI Related to This Thread.


 


"Two articles describing the "Michigan Model"  at the University of Michigan Health System (Boothman RD et al (2009) JHlth & Life Sc Vol 2, #2 125-159; and Boothman RD et al (2012) JFrontiers Hlth Serv Mgmt, 28:3, 15-28) provide all the data needed to confirm that "Early and Full Disclosure with Just Offers for Compensation, is not only the right thing to do morally but is also a sound business decision, since it decreases numbers of claims and total payouts. Add to that the human costs of protracted litigation wrought by the almost universal "deny and defend" approach to resolving medical error disputes. Most importantly, the traditional 'deny and defend' with 'confidential' resolutions perpetuates medical error instead of studying it to diminish future error.

Phil Benton, MD, JD
Atlanta Medical Center
Adjunct, Emory Law School"


 


 


 



Robert J. Latino, CEO


Reliability Center, Inc.


1.800.457.0645


blatino at reliability.com


www.reliability.com


 




From: robert bell [mailto:0000000296e45ec4-dmarc-request at LIST.IMPROVEDIAGNOSIS.ORG] 
Sent: Sunday, May 22, 2016 5:17 PM
To: IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG
Subject: Re: [IMPROVEDX] [IMPROVEDX] death certificates-litigation




 


Thanks Joe,



 



My concern has been that a fear of litigation, or a fear of being deposed, or information being discovered stops much transparency. That fear may not be real but it exists and stops so much. Safety data is not collected or even inaccurately collected because of litigation repercussions.



 



Surely Hospitals/HCPs could negotiate a deal with the legislatures and lawyers that would provide compensation for the patients involved, but HCPs receiving some tort reform consideration if the errors in a particular hospital remained low.  Yes, some difficulties, but surely something could be worked out to focus on the problem, and in turn save lives and injury.



 



Start in one state!



 



Robert Bell, MD.



 



 





On May 6, 2016, at 8:41 AM, Joe Graedon <jgraedon at gmail.com> wrote:


 




Robert,



 



We have heard for years (decades) that litigation is the problem. Mean, nasty, aggressive plaintiffs lawyers are what prevents transparency. If we could only institute tort reform and reduce the risk of litigation and large settlements, then everyone could live happily ever after and report errors and the system would function superbly well.



 



Sorry, I hate to play devil’s advocate on this, but where is the evidence that would make any difference? A lot of people who are severely injured as a result of medical mistakes are left in limbo when tort reform prevents legal recourse.



 



If I am not mistaken, Tim McDonald, MD, JD, demonstrated that the Seven Pillars program he initiated at the University of Illinois demonstrated that transparency works and does not result in outrageous settlements. If anything, it saves money.



 



Here is a link to our interview with him and an overview of his research:



 



http://www.peoplespharmacy.com/2015/09/23/show-1007-coming-clean-on-medical-mistakes/



 


Seven Pillars of Transparency:


"Despite the fear, some health care institutions have found that transparency with respect to errors actually reduces lawsuits and generates good will. Learn about the Seven Pillars approach to disclosure and remediation utilized successfully at the University of Illinois. Should it be adopted elsewhere?”



Joe



 



 



 





On May 6, 2016, at 1:05 PM, Robert Bell <0000000296e45ec4-dmarc-request at LIST.IMPROVEDIAGNOSIS.ORG> wrote:


 





Yskert, a real step forward. We need solutions.



 



Your thoughts, where appropriate, should also be extended to every private doctor''s office and all other medical facilities outside of hospitals. Although it could be harder to do.



 



However, I have been recommending for years a system of having at least one person assigned as a "Safety Officer" in HCPs offices with periodic discussion and remedies of ALL the negative events collected. Call back failures, appointment problems, lost lab work, 911 calling, etc., etc.



 



But to my knowledge I have had no offices that have recently introduced such an arrangement. But I may not have heard of them. I have heard by hearsay that a very, very small number of larger offices have such a system in practice, but that was some years ago. Not recently.



 



The lack of interest I think is because no one wants anything to do with errors/mistakes, or any record keeping of these in case they are discoverable in future law cases. Cost may be a minor problem.



 



And this presumably is the same reluctance that hospitals have to collecting decent error data.



 



So this gets back to my point in this thread of can we achieve ANYTHING significant without first fixing the litigation issues?



 



Without this are we just perpetually committed to talking, talking, talking but doing nothing very concrete to remedy the injury and loss of life!



 



Rob Bell, MD

Sent from my iPad




On May 6, 2016, at 2:33, "Kodolitsch von, Yskert" <kodolitsch at UKE.DE> wrote:





Dear Peter,



 


your comment is brilliant. Quite humanistic, I would say.


The literature on hospital management seems quite uniform in suggesting a command and control model of leadership instead (see for example all the strange articles that currently appear in the N Engl J Med; e.g. http://www.nejm.org/doi/full/10.1056/NEJMp1502312, or http://www.nejm.org/doi/full/10.1056/NEJMp1502419 ) .


If this goes on, there will be a deadly avalanche of costs for control and external incentives that finally destroys motivated healthcare.  


Do you know any good literature that substantiates your view in healthcare leadership?


There has to be an organizational theory framework to ground your views (beyond the usual literature on “team motivation”).



 


Best from Hamburg



 


Yskert von Kodolitsch



 




Von: Elias Peter [mailto:pheski69 at GMAIL.COM] 
Gesendet: Freitag, 6. Mai 2016 01:34
An: IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG
Betreff: Re: [IMPROVEDX] death certificates


 


I didn’t say reward and punishment won’t work. I said (or I tried to say) that this is too simple a phrasing to be either accurate or actionable.



 



I think there is never a single simple thing that will solve a complex and multifactorial problem. But here are some ideas I would try if I were CEO of my institution and had a magic wand:



 

Essentially NO rewards to individuals based on individual metrics. (See Deming and the Red Bead Game for why. Here is a link to a talk where Berwick does a shortened but effective version:   )
Set up the rewards (salary, bonuses, parking spaces, extra time off) so they are tied to outcomes across the institution, not by individuals. If complication X goes down by Y percent, EVERYONE (janitor to CEO) gets a piece of the reward.
At least half of the items measured and tracked should be selected by a broad and open process rather than imposed. 
Largely eliminate performance evaluations of individuals and replace them with performance evaluations of processes and teams.
Publish the institution’s statistics. 
Set up a process where, after an error is found (with or without actual harm) the involved individuals (including patients) are told what happened, the results of the root cause analysis, and what specific things are changing to prevent a recurrence. 
When someone makes a mistake and harm occurs, provide counseling and support. (I have not fully healed from some mistakes I made 3 decades ago.)
Make self-examination of processes and small tests of change for improvement a standard part of everyone’s job description, with budgeted time and support infrastructure.
Make self-examination of errors and harm a standard part of everyone’s job description, with budgeted time and support infrastructure. (E.g., a weekly meeting of clinicians and office staff to talk about things that didn’t work well and how to improve them.)
When something bad happens (from wrong side amputation to failure to notify a patient of a normal lab result) and is reported by someone involved who suggests an improvement, a thank-you note wet-signed by the CEO and included in the personnel file.
Etc.



 



The overwhelming majority of people in health care are motivated (driven) by a desire to do the right thing for the right reason in the right time frame. Leverage this. Build on this commitment and the accompanying internal motivation. Avoid turning internal motivation into a materialistic economy, which is much easier to game and less likely to work.



 



All my suggestions are intended to make success something measured at the highest team level possible, remove or blunt a punitive mind set, make sure metrics happen at a level where there is at least a chance that they are meaningful (they are not meaningful at the individual clinician level), and focus all the talk and energy on making things better.



 



Peter



 



 



 



 





On 2016.05.05, at 6:22 PM, Joe's New Gmail <jgraedon at GMAIL.COM> wrote:


 





So Peter...how would you go about changing behavior?



 



If reward and punishment won't work, what would improve the reporting process? 



 



Joe




On May 5, 2016, at 5:04 PM, Elias Peter <pheski69 at GMAIL.COM> wrote:




I love blunt. I’ll also be blunt. 



 



Without disagreeing, I would add that it is important to remember that ‘reward’ is a simple two syllable word that codes for an incredibly array of possibilities. Big, small, intrinsic, extrinsic, immediate, delayed, proportional, disproportional; these all impact the effectiveness (or counter-productivity) of rewards.



 



Pilots, to my knowledge, are not rewarded *directly* for reporting errors, problems, incidents. They are ‘encouraged’ by a combination of culture, support when they do so, seeing positive results when they do so, and the knowledge that their fate is the same as the fate of the airplane.



 



Let’s not think that we can create a reward system for reporting errors and thereby change the culture.



 



Peter



 





On 2016.05.05, at 4:35 PM, Joe Graedon <jgraedon at GMAIL.COM> wrote:


 




I am a firm believer in the principles of reward and punishment. By that I mean, people, animals, and all sorts of other creatures do what gets them rewards, treats, food, toys, whatever. They also try to avoid the things that cause them distress. 



 



Our medical system rarely rewards health care professionals for reporting errors. If anything, physicians are punished by their employers, insurance companies and yes, malpractice lawyers, for being transparent about mistakes, especially those that lead to death. 



 



I only imagine we will see change if we come up with strategies to reward physicians, nurses and all others involved in health care to share mistakes the way pilots are encouraged to share close call information. We need billions of dollars in federal money (think the National Institute of Error Prevention-NIEP) to come up with solutions to diagnostic errors and treatment mistakes. And we need to punish institutions that hide their mistakes. 



 



Reward the behavior we wish to encourage. Punish the behavior we wish to disappear. 



 



Sorry to be so blunt.



 



Joe



 



 






On May 5, 2016, at 3:57 PM, Phillip Benton, MD, JD <0000000697ec7b18-dmarc-request at LIST.IMPROVEDIAGNOSIS.ORG> wrote:


 





Liz,

Is such review not essentially what Lucien Leape and colleagues did in the Harvard Medical Practice study (N Engl J Med. 1991 Feb 7;324(6):377-84) 25 years ago, referenced in the IOM  report To Err Is Human (1999)? The several reviews that followed were systematically re-reviewed  by John James just 3 years ago (J Patient Saf. 2013 Sep;9(3):122-8.). 

Can we deny the problem?  NO.  Can we arrive at a consensus definition (wth qualifiers) and ascribe an ICD code (with modifiers)?  Most probably YES if anyone will take it on.

Phil Benton, MD, JD
Atlanta, GA

-----Original Message-----
From: Elizabeth Regan <lizregan53 at GMAIL.COM>
To: IMPROVEDX <IMPROVEDX at LIST.IMPROVEDIAGNOSIS.ORG>
Sent: Thu, May 5, 2016 2:24 pm
Subject: [IMPROVEDX] death certificates


I would not favor adding medical error to death certificates for a variety of reasons but the chief one being that it is so hard to define and while is obvious to those who want to see improvement, it is less obvious to those who want to avoid the concept. At the point where there is broader consensus on how to identify and reduce medical error (especially diagnostic error) I think it will be easier to record and track the event.

I believe strongly that it is critical to do that, but we are not there yet.

I have just completed a project to adjudicate cause of death in nearly a 1000 deaths for a large cohort study. The project involves reviewing both death certificates and medical records. At that level of review I did not see evidence of diagnostic error or other errors. Now that I consider the project in light of this discussion - I guess that is interesting.

I don’t interpret this to mean that none of those subjects experienced error, but rather to reflect on the invisibility of error in our record keeping.

I wonder about the feasibility of re-reviewing the data with a more critical eye and finding more. However, I don’t really think I would find much.

Liz Regan





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Chief, Nephrology Division


Nephrology Fellowship Program Director


Baylor University Medical Center, Dallas




 







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Moderator: David Meyers, Board Member, Society to Improve Diagnosis in Medicine

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