Increased disclosure of injuries to patients will likely boost the number of lawsuits filed and payouts made. This is not to say that enhanced transparency is not a good thing; it just may be an expensive thing. Disclosure flies in the face of the traditional “deny and defend” policy of stonewalling against potential or real litigants.
The Studdert article I reviewed last month concluded that forecasts of reduced litigation and cost were unlikely from transparency of adverse outcomes to patients. (Health Aff 2007; 26:215.) Health care providers historically have not been trained how to disclose bad news, perhaps were embarrassed about what happened, and certainly have been fearful of litigation. The prudent insurer typically would recommend that things be kept secret, argue fault at every turn, and fight every step of the way to make litigation chronologically long, expensive, and as slow as possible. (J Health Life Sci Law 2009;2:125.)
These attitudes, by the way, are about as far as possible from the Institute of Medicine's utopian view of a health care system that is safe, efficient, patient-centered, timely, efficient, and equitable. (Health Aff 2004;23:11.)
Back to Ethics
Patients increasingly expect to be apprised of care that has gone wrong. It would be difficult to argue otherwise from a moral perspective. The National Quality Forum, in fact, has listed standards of disclosure of unanticipated outcomes as part of its safe standards. (www.qualityforum.org/publications/reports/safe_practices_2009.asp.) And it is undoubtedly true that many lawsuits are filed in part by victims trying to find out the truth. There certainly seems to be a growing consensus among physicians that disclosing errors to patients is important. (Arch Intern Med 2005; 165:1819; New Engl J Med 2007; 356:2713.)
Disclosing, taking responsibility, apologizing, and preventing recurrences have become hot topics, and are increasingly mandated and accepted within the health care community. Risk managers, however, may operate independently of an institution's quality infrastructure and leaders, and may be loath to apologize for an error.
Pennsylvania passed a law in 2002 requiring hospitals to notify patients within seven days after a “serious event.” This communication is prohibited as evidence of liability for the disclosed event. (Arch Intern Med 2005;165:1819.) Many other states have adopted so-called “apology laws,” which protect specific information such as apologies, but do not protect accompanying specific information about what caused the injury or who was at fault. Apparently, only Pennsylvania specifies sanctions for noncompliance.
Why Patients Sue
If poor communication constituted the major reason that patients decided to sue, then disclosure certainly would decrease the amount of litigation. Patients may very well simply want the truth or for mistakes to be corrected so the next patient does not experience a bad outcome. Many patients never would have found out about their injury if not for disclosure. It strains credulity to think that monetary compensation doesn't enter into the equation somewhere for plaintiffs.
Interestingly, there is a case in the private sector that tends to support the concept that disclosure may be cost-effective, in addition to the obvious ethical considerations. COPIC Insurance, a liability insurer in Colorado, developed a program in 2000 to facilitate communication about injuries. Patients were provided with up to $30,000 in compensation for “costs.” Because no fault was listed and patients did not waive their right to sue, the payments under this program were not considered reportable to the National Practitioner Data Bank. Payments averaged approximately $5400 each, and seven of the approximately 750 patients paid went on to litigate their cases, and only two resulted in tort compensation. The low average payment per incident suggests that money alone is not the main driver for these suits. It is noteworthy that exclusion criteria for the program included clear negligence, attorney involvement, death, or complaint to the state board. (CMAJ 2006;175:889.) It seems likely to me that those egregious cases excluded by the program should have generated significant payments.
While there is evidence from the Lexington (KY) VA Medical Center and the University of Michigan Health System that the cost of litigation declined significantly in the five-year period following implementation of an open-disclosure program, I remain skeptical about the cause and effect. Historical controls are difficult to evaluate; litigation may have decreased over time for a variety of reasons. It seems difficult to extrapolate a VA experience to a broader spectrum of health care. The Colorado experience is intriguing if it is borne out that transparency is not necessarily expensive. I will talk more about the University of Michigan experience next month.
Disclosure of harmful events is a concept that is here to stay. It is difficult to argue ethically against it. Issues of patient satisfaction and the rates of ensuing litigation have not been elucidated. Transparency will entail training and simulation for clinicians who will be doing more of this is the future, until systems are in place to drive down the medical error rate.