Thomas Fleeter, MD Dr. Fleeter is in private practice at Town Center Orthopedic Associates in Reston, Va., and chair of the board of directors for Reston Hospital Center. He is a member of the AAOS Medical Liability Committee. He can be reached at bonedock@comcast.net

AAOS Now

Published 2/1/2011
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Thomas Fleeter, MD

Addressing the medical liability crisis

AHRQ grants provide for liability alternatives

Despite the efforts of the American Association of Orthopaedic Surgeons (AAOS) and many other medical specialty societies, the healthcare reform bill of 2010 does not directly address medical liability tort reform. During debates prior to the passage of the bill, President Obama admitted that defensive medicine may contribute to unnecessary costs. Although the president opposed caps on damages, he indicated a preference for using preventive medicine to ward off lawsuits.

Although medical liability reforms could help reduce health costs and promote safety, the Patient Protection and Affordable Care Act (PPACA) includes only two small liability provisions. The first authorizes limited demonstrations projects; the second offers federal medical liability protection to nonmedical personnel who work in free clinics.

Grant funding
The intent of the demonstration project grants is to improve communication and reduce the rate of preventable injuries. These grants emphasize open communication when discussing and rectifying errors, team building, and moving away from a blame mentality.

As part of the funding for demonstration projects, the Agency for Healthcare Research and Quality (AHRQ) has awarded $25 million for pilot programs to improve patient safety and reduce the number of medical liability lawsuits filed. Approximately $19 million was awarded to seven demonstration programs supporting a variety of models that meet the AHRQ goals of reducing preventable harms, informing patients promptly and allowing prompt direct compensation injuries, and promoting early disclosures and settlement through court-directed alternative dispute resolution models.

In addition, 13 studies were funded to evaluate additional medical injury prevention measures and to develop a safe harbor for physicians who can demonstrate that they followed evidence-based guidelines, to support early disclosure and make efforts to provide prompt compensation, and to increase transparency between providers and patients when injuries occur.

Although many of these programs are still in the early stages of development, may have only small chances of actually being implemented, or are unproven in their efficacy in reducing medical injuries, these grants may represent the only federally funded efforts affecting medical liability reform. Despite their small size and scope, some of the programs represent interesting and promising concepts that warrant a closer look.

Demonstration project descriptions
With its grant, a medical center in central Minnesota established critical event teams specifically trained to recognize situations that require early intervention. The first team was established on the obstetrics ward and drills regularly to identify high-risk pregnancies and treat complicated deliveries.

When an “at risk” baby is identified, the team is mobilized and is often in place even before the mother arrives at the hospital. By identifying and mobilizing for these and other obstetric emergencies, the critical event team has been instrumental in preventing injuries and increasing patient satisfaction—two important aspects of reducing medical liability lawsuits. Based on its initial success, this demonstration project has been expanded to 16 other Minnesota hospitals.

Similarly, a health system in Missouri used its grant to help reduce errors in perinatal care and address mistakes when they do occur. Hospital staff received special training to identify and treat perinatal emergencies such as anoxia and shoulder dystocia. The responding medical team now has a preset bundle of appropriate responses designed to reduce the time to appropriate treatment, resulting in fewer perinatal injuries. Reducing time from diagnosis to treatment reduces the likelihood of injury and lawsuits.

A demonstration project at the University of Washington attempts to address the problem of poor communication among members of the medical team, another common cause of medical injuries. For example, the night shift nurse may not have a mechanism allowing him or her to speak up and identify any concerns or may be reluctant to disturb the treating physician or members of the medical team at the beginning of a tense or complex surgical procedure.

The project’s proposal, therefore, includes establishing a formal conference led by a Quality Initiative representative to determine the cause of injury, formulate a plan to prevent injury, and develop a shared disclosure plan with a possible joint compensation offer. If successful, this communication training proposal could expand as a statewide initiative.

The Massachusetts Department of Public Health received $3 million to identify and avoid process issues that lead to errors after a patient goes home. For example, a patient who has a radiologic study that indicates a problem may not follow through with the appropriate specialist and, as a result, a more serious problem develops. Focusing on how to ensure that follow-up tests and evaluations occur can help to reduce injuries and medical liability costs.

The University of Illinois and the University of Texas each received grants to study how to improve physician-patient communications. These projects focus on early communication with patients and includes early issuing of an appropriate apology by the doctor or hospital. Early apologies with appropriate explanations can sharply reduce medical liability claims.

New York State was awarded a grant designed to reduce malpractice costs through accelerated negotiations. This project uses judge-directed settlements to arrive at earlier resolution of complaints with lower costs. In this study, the same judge presides over the case throughout its entirety. Only parties with authority to negotiate are involved, and using the same judge expedites the process, reduces costs, and increases the percentage of any award given to the patient.

Wait and see
Although these small demonstration projects are interesting and provocative, their long-term effect on medical liability reform may be small. Carolyn Clancy, MD, director of the AHRQ, believes that these types of projects can buttress the case for changes in federal law by providing “a fundamentally better evidence base” to reduce errors and improve outcomes. Whether these proposals lead to meaningful tort reform is yet to be seen; however, any change that reduces errors, improves communications, and reduces liability exposure is clearly a step in the right direction.

Editor’s Note: Articles labeled Orthopaedic Risk Manager are presented by the Medical Liability Committee under the direction of contributing editor S. Jay Jayasankar, MD.

Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional.

E-mail your comments to feedback-orm@aaos.org or contact this issue’s contributors directly.

Additional Links:
Medical Liability Reform and Patient Safety: Demonstration Grants

Medical Liability Reform and Patient Safety: Planning Grants