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AAOS Now

Published 9/1/2010
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Alison Lobron

Saying sorry

Michigan project’s response when medical procedures go awry

Rick Boothman still thinks about a malpractice case he won 30 years ago. Fresh out of law school, he represented a surgeon who had been sued by a former patient. “As the jury was filing out, the lady who sued my client leaned around the podium and I learned this was the first time she’d talked to him in three or four years,” he recalls. “She said, ‘If I’d known everything you said in the courtroom, I never would have sued you.’”

Boothman was surprised by the woman’s reaction—and intrigued by the idea that a simple conversation might have prevented an expensive, multiyear court procedure. “I remember thinking, ‘Wow, that’s a long way to go to have a conversation,’” he says.

Boothman, now the chief risk officer at the University of Michigan Health System in Ann Arbor, has since put his idea to the test by changing the way his health system responds to threatened and actual lawsuits. The results of the new approach, which was launched in 2001, are striking.

The University of Michigan Health System operates three hospitals, a medical school, and dozens of health centers. Prior to 2001, the system typically cut off communication between doctors and patients while parties prepared to go to trial. Now, the system conducts an internal review of each case and shares the findings with the patient—including whether the physician acted in error. It also facilitates conversations about what happened among patients, physicians, and their lawyers.

Although many doctors initially feared that more openness would invite more lawsuits, the opposite is true. In 2001, 121 lawsuits were filed against the university. In 2002, the first full year under the new system, there were only 88 new claims, a number that has held steady. Boothman says a culture of frankness has led to quicker resolutions and settlements for patients and to doctors being more willing to discuss, and learn from, their mistakes.

The system has more quantifiable benefits: Patients who do file claims don’t wait as long for closure since the average case now lasts 10 months instead of 20. Malpractice insurance costs have stayed level in the university’s system over the last 10 years even as the system got larger.

The approach depends upon two key aspects of Michigan law, which underwent significant tort reform in 1994: Physicians know they can apologize, or express regret and sympathy for what happened to a patient, without having their words used in court as an admission of negligence. The state also requires that a plaintiff’s lawyer file a notice-of-intent to sue 182 days before doing so, allowing for a cooling-off period in which, at least some of the time, patient and doctor and their lawyers can talk about what happened.

And conversation is key. Doug Wojcieszak lost his oldest brother in 1998 at an Ohio hospital. “He died in a hospital where they misdiagnosed a heart attack and mixed up his charts. No one talked. We sued, and the judge forced a settlement. We got money, but we never got an apology or emotional closure or were told what the hospital would do to make sure it would never happen again.”

Wojcieszak now runs Sorry Works, a company that consults with doctors and hospital officials who want to imitate the results in Michigan. Medical providers all over the country have adopted new policies for disclosing medical errors to patients.

He says some medical providers imagine that sorry will be a magic bullet—and patients won’t also want compensation. His experience suggests otherwise; in cases of real injury, an apology usually needs to be part of a larger financial package. What he believes can be prevented are patients seeking huge damages specifically to punish physicians.

More open communication can lessen the anger. “When doctors talk to patients, we become altruistic,” Wojcieszak says. “We want to know medicine is going to improve. Just the act of hearing someone say sorry, it takes the wind out of your sails. Hearing them say they screwed up is a game-changer.”

Boothman, who designed the University of Michigan’s system, is quick to say that apology-protections and waiting periods alone are unlikely to change doctors’ behavior—either as far as reducing defensive medicine or fostering more open communication. Another key element to his program is harder to replicate: The university’s health system is self-insuring, meaning it sets its own malpractice policies. It also promises to protect its healthcare providers financially, making them more amenable to conversation than a doctor in a small practice might be.”

He speculates that the self-insurance piece is one reason the program hasn’t spread on a grand scale, even in Michigan. He knows of one other medical system in Michigan that has adopted a similar program but says, “In general, there’s a lot of talk and a lot of interest, but not a lot of movement as far as I can see.”

Boothman says that he encountered significant opposition from attorneys in Michigan, but thinks that the years he spent in courtrooms—before working at the hospital—helped ease the tension between the legal and medical worlds in Ann Arbor.

“I knew everyone and when I first got here, I told people on the plaintiff side, ‘Call me, we’ll do the right thing,’” he says. In a 2009 article for the Journal of Health & Life Sciences Law, Boothman reports the findings of a survey of local doctors and attorneys suggesting that both sides largely support the new approach. Some
98 percent of the system’s physicians “fully approved” of it, and while there was no identical question included of attorneys, 86 percent of lawyers “agreed that transparency allowed them to make better decisions about the claims they chose to pursue.”

Excerpted with permission from CommonWealth Magazine, Summer 2010.