Should we admit medical mistakes? Most risk managers (and med mal attorneys) might say no, but Dr. Peter Smulowitz says that’s the wrong thinking. Admitting errors can be good for patients and good for us.

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Shownotes

Pearls:

• The victims of our current risk-management strategy (which is to pretend it didn’t happen, and, if discovered, to deny and defend) are the patient, the provider, and the system. 

• Communication, Apology, and Resolution (CARe) programs have been developed to encourage providers to talk about adverse events and create a transparent process with the patients and families.

•  The status quo for the way we handle mistakes creates multiple victims, but no winners.  [00:40]

• • When a mistake is made in a hospital, the common response is to pretend that it never happened. And then if it’s discovered, we’ve learned to deny and to defend, before beginning a prolonged process of resolution. 

  • • This adversarial process leads to a lost opportunity to learn from the mistake, on the individual and institutional level. It also prevents providing closure to the victim of the mistake.

    • Our approach to managing adverse events often comes under the guise of risk management.  But perhaps we need to reframe these events from managing risk to managing patients.

  • Who are the victims of our current  risk-management strategy? 

  • • The patient:  According to the Institute of Medicine, the liability system is the number one impediment to patient safety.  Further, when something bad happens and compensation is deserved, the patient receives 30 cents on the dollar.  The rest goes to administrative waste and legal fees. Oftentimes, the patient never even receives an answer when a major adverse event happens.

    • The provider:  Providers spend much of their careers worrying about and trying to avoid lawsuits. And when lawsuits happen, there are significant impacts in terms of depression, substance abuse, and burnout.

    • The whole system:  One study showed that we spend about $1.4 billion a year on defensive medicine. That is a significant impact on health care costs.

• It was the aftermath of an unfortunate case that sparked Smulowitz’ interest in this subject. It motivated him to try to make systems better so that others did not have to go through the same trauma. [03:40]

Case

A 24 year old man presented with thoracic back pain after lifting boxes.  An MRI was ordered due to a history of substance abuse and was read as normal.  In the ED, the patient had a sudden PEA arrest and died. The MRI was re-read as showing an aortic abnormality.

• • Smulowitz felt horrible after this case. He had zero confidence in himself, and he almost quit practicing medicine.

  • The hospital’s response was not ideal.  Risk management advised that he only speak to a psychiatrist about the case.  He felt completely alone.

  • He imagines the patient’s family must have felt terribly as well.  They couldn’t talk to anybody about what had happened. Even though the case settled, Smulowitz isn’t sure they ever truly got answers.  And they probably have no idea how badly he felt. 

  • Smulowitz regrets that he didn’t have the chance to talk to the family and to apologize that such a horrible thing happened to their loved one. 

  • The current practice of pretending that bad things don’t happen is absurd.  We’re going to make mistakes, and we practice in imperfect systems where bad things are going to happen to people despite our best efforts.

  • The institutionalized isolation that we’re almost obliged to enter after an adverse event contributes to the second victim syndrome.  The patient is the first victim, and the healthcare provider, who is traumatized by the event, is the second.

• We are taught not to apologize after an adverse event. But is this good advice? [11:00]

• • Many states have apology laws which protect you either partially or fully when you admit fault after an adverse event.  But Smulowitz believes these are almost useless in terms of their ability to protect from legal action. The laws are in place primarily to support and promote the apology process.

  • Excerpt from an article about apology laws:  

“Although physicians may feel the need to apologize after an adverse medical event, physicians’ gut instincts to apologize are often hampered by the fear that their statements will be used against them in court.  This fear is further solidified when their attorneys advise them to be careful not to admit fault or liability. This seemingly well thought out strategy to remain silent actually creates an unexpected paradox. Refusing to apologize can precipitate litigation to an even greater extent.  Consequently, the lack of an apology can dilute the doctor-patient relationship, hinder patient safety, and increase litigation.” 

• • Communication is critical and an apology can be beneficial.

  • • It is the responsibility of the provider and the hospital to communicate with patients in the aftermath of an adverse event. 

    • An apology is not an admission of fault. Apologies are beneficial to the physician as long as you’re not saying something crazy within the apology. Apologizing for something bad happening can be protective in the court of law because it makes physicians look like human beings.

• Communication, Apology, and Resolution (CARe) programs have been developed to bring providers out of the shadows, encouraging them to talk about adverse events and encouraging a transparent process with the patients and families. [13:05]

• • Communication -- There should be early and ongoing communication in the aftermath of an adverse event.

  • Apology -- There should be an apology when mistakes happen.

  • • Sample verbiage:  “It is so horrible that this bad event happened to you. We are devastated that this occurred. We are going to continue taking care of you/your loved one and our hospital is going to be carefully reviewing what just happened.  We’re going to get back to you with the results we find.”

  • Resolution -- 

  • • Make sure that patients receive just and timely compensation when bad things occur that are directly attributable to deviation from the standard of care.  

    • • Note that some patients/families do not desire financial compensation and just want explanations.

      • Patients who receive financial compensation through CARe must sign a waiver saying they will not later file a lawsuit.

    • But if the adverse event is not attributable to negligence or the lack of standard of care, there should be robust defense of the hospital, provider, or system. Providers should be supported if the event was outside of anybody else’s control.

  • Institutionalizing this process is the only way to make it work, because you have to tie the communication and the apology piece to a true, just, and timely resolution.

• How would you apply the CAR process to this hypothetical scenario:  a young woman with a viable pregnancy is mistakenly given methotrexate (which was ordered for the patient with an ectopic in the room next to her)?

• • First, the provider needs to communicate the mistake to the patient.  “You were given methotrexate and we don’t know the reason for it yet.  We also don’t know what the outcome will be for you. We’re going to continue to investigate what happened and we will continue to support you.”

  • Second, the error should be shared with your institution’s designated contact people responsible for investigating adverse events.  This could be the ED director, the chief medical officer, OB/Gyn, and/or the risk manager. Their involvement early on is necessary for communicating to the patient what the likely possible outcomes might be and how they’re going to continue to provide care and support. 

  • • The rule of thumb is that the more severe the case, the more the institution needs to pull together quickly to discuss what’s going to be said, how it’s going to be said, and who is going to say it.

  • Third, there will be a point person who will follow along with the patient and be continually communicating. This should not be the initial treating provider.  

  • All hospitals should have the infrastructure to provide ongoing support to patients when untoward events happen.

• What is the best way to deliver bad news and apologize effectively? [21:20]

• • The core of an apology is an explanation which demystifies the offense, but does not excuse it.

  • Make sure that the facts (as you know them) are delivered. Don’t go above and beyond what you think you can explain. And don’t blame yourself or anybody else.  Be honest and transparent. Deliver it in a way that makes the patient feel supported.

  • At Smulowitz’ institution they have put in place “Just-In-Time” coaching.  When something bad happens, you can page someone who has years of training and can coach the provider on what to say, what not to say, and whether he/she is the right one to say it.

• The University of Michigan made the CARe program an institutional process. What happened after they started using it?  [22:05]

• • They saw a dramatic reduction in the number of claims, the number of lawsuits, and overall costs related to lawsuits. Equally  important, there has been a dramatic increase in the number of incident reports.

  • Those results have been replicated at several other large institutions. 

• What are the barriers and strategies for implementation of CARe programs? [25:55]

• • Providers are wary of it.  They feel vulnerable.

  • Hospitals are worried they will be paying a lot of money due to an increase in lawsuits.

  • Some plaintiff and defense attorneys are against these programs.

References:

Bell SK, Smulowitz PB, et al. Disclosure, apology, and offer programs: stakeholders' views of barriers to and strategies for broad implementation. Milbank Q. 2012 Dec;90(4):682-705. PMID: 23216427.

Davis, Erika R. I'm Sorry I'm Scared of Litigation: Evaluating the Effectiveness of Apology Laws. The Forum: A Tennessee Student Legal Journal. Vol. 3. No. 1. 2016. 

Mello MM, et al. Communication-and-resolution programs: the challenges and lessons

learned from six early adopters. Health Aff (Millwood). 2014 Jan;33(1):20-9. PMID: 24395931.

Shostek, Kathleen.  Communication and Resolution Programs:  Where are we now?  American Society for Health Care Risk Management. 2017 Jun 28.

McDonald, Timothy B., et al.  Implementing communication and resolution programs: Lessons learned from the first 200 hospitals. Journal of Patient Safety and Risk Management. 2018 April 11.

LeCraw, Florence R., et al.  Changes in liability claims, costs, and resolution times following the introduction of a communication-and-resolution program in Tennessee.  Journal of Patient Safety and Risk Management 23.1 (2018): 13-18.