'Sorry' doesn’t mean they’ll sue: How hospitals avoided lawsuits after adverse events

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 - Michelle Mello, PhD

Communication-and-resolution programs (CRP) at four Massachusetts hospitals led to lower medical liability costs and improvements in patient safety after adverse events, countering concerns that telling patients about errors would motivate more to file lawsuits.

Led by Stanford University health law professor Michelle Mello, PhD and published in the October issue of Health Affairs, the study evaluated programs implemented at six hospitals run by either Beth Israel Deaconess Medical Center or Bayside Medical Center. Their CRP protocol, called CARe (Communication, Apology and Resolution) was introduced in their large level 1 trauma centers (Beth Irael’s 672-bed Boston facility and Baystate’s 716-bed facility in Springfield, Massachusetts) as well as two Baystate community hospitals.

The protocol was used in all clinical settings for all adverse events. When events met (or when a patient alleged they met) a severity threshold, it was included in the evaluation. That threshold was any event which caused harm to a patient which either led to or extended a hospitalization, necessitated an invasive procedure or resulted in at least three outpatient visits.

If an investigation finds significant violations in the standard of care, the CARe protocol calls for providers and liability insurers apologize to patients and proactively offer compensation. The study recorded 140 events (out of a total 989 which had been reported) that met the criteria to be referred to the liability insurer. Out of those, compensation was offered in 24 cases.

“A key takeaway lesson is that most often, CRPs’ work involves communicating with patients about adverse outcomes that are not due to substandard care—providing the information and empathy that patients need to be able to process the event and understand that it does not merit legal redress,” Mello and her coauthors wrote.

The study authors said providing explanations and sympathy for harms that didn’t result from negligence can avert malpractice lawsuits filed based on misunderstanding or a perception that providers tried to cover up mistakes or lacked in communication.

Rather than give rise to additional lawsuits by apologizing, the CARe approach didn’t trigger new litigation or costs, with only 5.1 percent of events resulting in a claim. The median compensation for CARe events was a “fairly modest” $75,000.

“Patients may have emerged from CARe discussions with an understanding that the injury had not been caused by substandard care,” Mello and her coauthors wrote. “Alternatively, they may have disagreed with the hospital’s characterization but felt pessimistic that they could prevail in litigation. Getting an attorney to take a case is difficult when one must explain that the hospital has investigated and explained that no settlement offer is warranted. This makes it all the more important that hospitals’ CRP evaluations be made in good faith after diligent investigation.”

Beyond benefits for fostering better communication with patients and their families, a CRP can also be beneficial for clinicians. However, the study found nearly 40 percent of clinicians at the hospitals were either not very or not at all familiar with the program.

“Great idea, too bad it’s kept a secret,” one survey respondent commented.

Mello and her coauthors said “robust communication” with clinical staff is essential to a CRP, both to make sure investigations are thorough and to reassure clinicians that the hospital is placing unfair blame on them with the program. The authors recommended more “consistent branding” of a facility’s procedures, as well as outreach beyond mentioning the program in educational sessions or meetings, will get more clinicians engaged in a CRP.