OPEN DISCLOSURE- A LEGAL PERSPECTIVE Presented by: Kuah Boon Theng Director Legal Clinic LLC

Why talk about open disclosure? Specifically, why is a lawyer talking about open disclosure? To what extent is the concept of open disclosure compatible with the interests of the defence of medical malpractice claims?

Defending Medical Malpractice Claims Defending a malpractice claim is not the same as defending medical malpractice Our job is not to get hospitals and doctors “off the hook” for lapses in care Looking after the interests of hospitals and doctors require prompt and careful investigation of the facts, fair and impartial appraisal and advice, and a policy of active engagement and dialogue with the claimant

Defending Medical Malpractice Claims Accordingly the aims of a good and effective medico-legal case management strategy must be based on: ▫Fairness ▫Justice ▫Accountability

UMHS Case Study: The University of Michigan Health System’s Approach to Patient Injuries and Claims

UMHS Experience Historically, their medical malpractice experience was typical of many healthcare institutions in America: ▫Claim were not addressed in proactive way ▫Claimants felt they had no choice but to engage lawyers just to find out what happened ▫Hospitals would respond only when a claim was actively asserted ▫System encouraged escalation and an adversarial approach to resolving claims

The “Deny and Defend” Strategy Institutions go into defensive mode as soon as patients query their medical treatment There is an aversion to confronting angry people and engaging in open and fair disclosure that may prove uncomfortable or embarrassing There is anxiety that discussion will compromise one’s position This deepens the perception amongst patients that they will not get fairness and justice from the hospital or doctors, and drives them towards litigation

The “Deny and Defend” Str ategy The Result This inefficient and costly response to patient complaints drove up litigation and exposed doctors to more legal claims and also increased patient dissatisfaction The Cost A US study showed that overhead costs associated with malpractice litigation were exorbitant. For every dollar spent on compensation, 54 cents went to administrative expenses (lawyers, experts, the courts) The Irony Medical community has a well-publicized loathing of litigation and yet over a few decades litigation had remained their dominant response to complaints

Mitigating the Fallout from the US Malpractice Crisis Needed a change in attitude ▫American doctors regarded malpractice suits as unjustified affronts to their professionalism, and blamed the legal system ▫They saw malpractice claims as random events that inflict unfair expense and pain on hardworking doctors ▫A study found that doctors’ main concern regarding communicating medical errors was confidentiality and legal discoverability of the information reported

Mitigating the Fallout from the Malpractice Crisis In reality:- ▫Many complaints and claims were the product of poor communication and what was perceived as lack of empathy from doctors/hospitals ▫In fairness, some were based on justifiable allegations of lack of care ▫Lawyers can be used as an effective bridge towards resolving differences rather than fueling litigation, but their services were not being utilized as such

Mitigating the Fallout from the Malpractice Crisis There needed to be more transparency ▫Doctors gravitated towards the deny and defend strategy thinking it was the safer thing to do ▫Non-disclosure usually driven by fear ▫Insurers typically did not want their insured party to admit liability

Mitigating the Fallout from the Malpractice Crisis Responses:- ▫Sorry Works! Coalition– making a case for full disclosure ▫In order to ease doctors’ fears, 35 states in the US enacted “Apology Laws”, making apologies inadmissible in negligence suits

Sorry Works! Coalition Organization of doctors, lawyers, insurers and patient advocates dedicated to promoting full disclosure of apologies for medical errors as a “middle ground solution” to the medical liability crisis in US If root cause analysis shows that a standard of care was not met in a bad outcome or adverse event, the healthcare provider should: ▫Apologize ▫Provide explanation ▫Explain how the hospital will ensure the error is not repeated ▫Consider fair compensation when warranted

So What did UMHS Do? Identified what drove parties to medical malpractice claims ▫Need for compensation ▫Frustration in trying to get information about what happened ▫Claimants sense a lack of honesty and accountability for what happened ▫Claimants worry that the same mistake may be made in another case

UMHS Policy Response ▫When an Adverse Outcome Occurs -Be proactive in approaching patients and families especially in the acute phase -Prioritize patient needs -Explain what happened/Disclose information -Establish expectations for follow up -In cases of true mistakes, give patients/families a proper apology -Consider how to improve practices and share them with the patients/families -Adopt appropriate risk reduction practices and monitor progress

Fundamental Principles in UMHS Claims Management Response Compensate quickly and fairly when unreasonable medical care causes injury Defend medically reasonable care vigorously Reduce patient injuries (and therefore claims) by learning from patient experiences

Fundamental Principles in UMHS Claims Management Response For this to work, the following was essential: ▫Determination between reasonable and unreasonable care is absolutely pivotal. Investigation must be comprehensive and objective ▫What you disclose must be ACCURATE

Alignment of Interests Before a lawsuit, the interests of claimants and defendants are actually aligned ▫Both sides seek honest answers ▫Facing prospect of litigation, neither side wants to make a mistake ▫Defendants do not want to defend a claim only to realize later that the claim should have been settled from the outset ▫Claimants and their lawyers also do not want to engage in protracted expensive litigation only to lose

Practicing Open Dialogue Invite claimants to an open and honest dialogue about issues raised by medical care Discussions should be robust and parties share expert opinions and points of view The parties aim to narrow down the scope of disputes Constructive engagements allow each side to know what they are facing in litigation Litigation is then relegated to the last resort

The Results At UMHS Did honest and open disclosure lead to increased malpractice litigation? Did this tap into a reservoir of claims and swing open the floodgates?

The Results in UMHS- New Claims UMHS began to move its claims through the system much faster, from 262 open claims in 2001 to 83 in 2007 Over the same period, average claims processing time dropped from 20.3 months to about 8 months Insurance reserves dropped by more than 2/3, and average litigation costs were more than halved

The Results at UMHS Other benefits: ▫More resources and focus on risk management ▫Patient safety contingency fund established ▫Formation and deployment of rapid response teams ▫Proactive steps taken by patient safety coordinators ▫Surveys suggested that both doctors and lawyers were happy. Plaintiffs’ bar specializing in medical malpractice rated UMHS the best or amongst the best health systems for transparency

Transporting the UMHS Experience Singapore hospitals already have in place many similar factors that would support the UMHS model ▫Increasing focus and resources in quality assurance and risk management ▫Online incident reporting system ▫Pre-action discovery that allows claimants access to duplicate medical records ▫Pre-action Protocol for Subordinate Courts malpractice claims that promotes pre-lawsuit exchange of information and dialogue

Transporting the UMHS Experience More importantly, there is already an established good sense in approaching medico-legal claims in a truthful and ethical manner, based on fairness, justice and accountability

Hospital Image Hospitals and doctors ▫Cannot afford to cultivate a perception that it fears litigation and adverse publicity ▫Needs to establish a reputation of being fair but also that they are no pushovers ▫Litigation opponents need to come to anticipate that when a hospital refuses to settle, it is time for them to seriously re-look at their case

Medico-Legal Case Management Strategy incorporating Open Disclosure Adopting a strategy that promotes dialogue, focuses on rebuilding trust, and one that is fair to both claimants as well as one’s own healthcare professions, is one that will ultimately pay dividends for hospitals

Kuah Boon Theng Legal Clinic LLC