Beyond Denial and Defense

Peers call Rick Boothman, the father of the communication and resolution program, the “rock star of CRP.”

He’s been called worse — “insane,” “moron” and “fraud” are among the invectives thrown his way, he says. But that’s what can happen when you introduce innovations that revolutionize the way business gets done. In this case, the health care, legal and insurance business.

In stark contrast to the long-accepted deny-and-defend approach to medical error and unanticipated outcomes, CRP is simple:

• Transparency and open communication translate to learning.

• Learning from mistakes and near misses means fewer errors and better outcomes for future patients.

• Fewer errors and better outcomes mean fewer claims and reduced legal, insurance and compensation expenses.

• All of the above improve physician wellness.

Detractors argue that the attributes of CRP don’t outweigh what they consider the potential for financial disaster. Instead, they contend open communication with patients and proactive offers of warranted compensation in cases of undesirable results are fraught with risk despite data showing decreases in claims, malpractice suits and legal fees.

CRP advocates have heard it all before.

In 2004, Boothman, a longtime defense attorney who has handled more than 1,000 malpractice cases, was the first of three speakers at a “Leading Medical Reform” conference at the University of Michigan, where he oversaw health care litigation as assistant general counsel.

After explaining the virtues of his emerging “Michigan Model” to a large audience, the second speaker, an esteemed academician, took the stage, pointed at Boothman and said, “This man will singlehandedly bankrupt the University of Michigan.”

He was dead serious — and dead wrong.

In the deny-and-defend era, Boothman believed honest communication with patients after medical errors would expose participating hospitals to an avalanche of malpractice suits that would bury them in an insurmountable mountain of debt.

Boothman was stunned but undeterred, even after a New York judge later admonished him “for taking advantage of people in their most vulnerable moment” by offering immediate compensation for less than they might receive with protracted litigation.

But Boothman says he has seen deny-and-defend at its worst. He wants only what’s best for physicians, hospitals, patients, their families — everyone.

His motivation? About 20 years ago, he defended a surgeon whose patient experienced a post-operative infection and sued the doctor. Six years passed before the case went to trial, the two parties saying nothing to each other during that stretch. “One day you take someone’s life in your hands,” Boothman laments, “and the next day you’re not talking to them? I remember thinking, ‘This is really bizarre.’ ”

After the verdict was rendered in his client’s favor and the jury filed out, the woman leaned around the lectern and told her doctor, “If I had known everything I heard in this courtroom, I would never have sued you.”

“I observed these things,” Boothman says, “and I would think, ‘Good God. So much of this could be resolved if people just talked.’ ”

They’re talking at the Erlanger Health System in Chattanooga, Tennessee, which initiated its CRP in 2009 and, according to a 12-year study published in the Journal of Patient Safety and Risk Management in 2018, has experienced dramatic reductions in defense and total liability costs and in time intervals to resolve events. Those findings were cited by the American Medical Association in 2017 when it adopted a resolution to support CRP.

Florence LeCraw, MD, a Georgia State University professor and research contributor to the 2018 report, says the study and AMA endorsement help confirm “that apologizing to patients for bad outcomes from medical error through CRP isn’t just the right and honorable thing for physicians to do, but now there is evidence it reduces legal costs, stress and the needless, costly practice of defensive medicine by physicians.”

She compares the safety potential of CRP to the dramatically improved safety record of the airline industry over the past 30 years. “The first thing they do when the plane goes down is find the black box” to learn what went wrong so problems aren’t repeated on future flights, she says. “In deny-and-defend we’re told to hide the black box from everybody: Don’t talk to the patients, don’t talk to your colleagues, don’t talk ...”

Like the black box, CRP opens the door for learning and solutions through communication.

Sometimes, a candid conversation is all that’s wanted — an explanation, an apology, some expression of compassion after an unintended outcome. For example, when Beth Daley Ullem lost her newborn son because of medical error at a Chicago-area hospital in 2003, she sought explanations, not money, but instead got “pushback and no answers.”

“There was no transparency to help me connect the dots and better understand what happened to my son. I wanted to help be part of that solution,” says Daley Ullem, now the founder and president of Quality and Safety First, which advocates, educates and advises health care leaders on the importance of making patient care and health care quality their highest priority. Instead, “it was a very missed opportunity for learning and healing.”

Declining Early Compensation

Interestingly, it’s not uncommon for patients to decline offers of early compensation — not because they believe they can get more in court, but because money is not what they’re after.

“Studies suggest that the majority of lawsuits result from people not being able to get information, and suing out of the sheer desire to know what happened, plus anger once they’ve been stonewalled,” says Albert Wu, MD, MPH, a Johns Hopkins professor and editor of the Journal of Patient Safety and Risk Management who is considered by his peers to be among the earlier CRP pioneers.

Michael McCoy, MD, who chaired a tort reform task force that led Iowa legislators to unanimously approve the Communication and Optimal Resolution program in 2015, says anger can affect patient retention and the physician-patient relationship and seriously damage public perception when patients “get furious and trash you to all their friends.”

Thomas Gallagher, MD, is the executive director at Collaborative for Accountability and Improvement, a University of Wisconsin Medicine program dedicated to the accelerated national expansion of CRPs, and he estimates that physicians and health care organizations win 85 percent of all malpractice suits, “so you can sort of see why it might be natural for some to say, ‘We’ll take our chances in court.’ ”

What isn’t considered, he argues, is the cost of defending malpractice claims, in addition to the “enormous economic and emotional toll on the patients and physicians” with cases that drag on for years.

As a lawyer, Boothman understands the toll of deny-and-defend and, worse, that “nobody was learning a darned thing,” he charges. “In 22 years, I never had a hospital ask me what they should have learned from the cases I handled.”

Call it “institutional neglect” — the decision, or default, to conduct business as usual, even at the expense of the organization’s brand and balance sheets, and even if it means future patients are harmed or die because the status quo turns a blind eye to its own errors.

Some people say deny-and-defend defies the clinician’s mission of patient care and safety by squelching communication, compassion and the opportunity to learn from mistakes. Moreover, years-long litigation breeds contempt by patients and families — and lingering angst among physicians.

“This new malpractice program, in contrast to the deny-and-defend legal approach to medical error, accelerates the process of improving the quality of health care delivery by empowering everyone to communicate openly and transparently about what went wrong and to focus quickly on how such episodes can be prevented in the future,” LeCraw says.

Boothman adds: “I think anybody can [implement CRP] in pretty short order, but it does take leadership to understand why it’s important to their broader medical mission. It takes anchoring the clinical and corporate leadership and getting them to understand that this can be done — and happily it saves money.”

Financial Benefits

Data supporting the financial benefits of CRP are prevalent.

• Since implementing CRP in 2009, Erlanger experienced lower defense and total liability costs, improved liability outcomes, and reduced duration for event resolution, from 17 months to eight. It also resolved 43 percent of its medical error events by apology alone, despite legal representation for 60 percent of those patients.

• A study in the November 2018 issue of Health Affairs found that CRP programs at four Massachusetts hospitals experienced significant decreases in new claims and legal defense costs at some sites, and no increase of liability risk at any sites.

• During its first nine years using CRP, the University of Michigan Health System experienced a 55 percent drop in the number of new malpractice claims and a corresponding 56 percent decline in claims resulting in lawsuits.

“Remember,” Boothman says, “we did not set out primarily to reduce our claims, but instead focused on the importance of honesty and accountability as a necessary prerequisite to relentless clinical improvement.”

Upon that foundation, the financial savings followed naturally.

Still, after decades of withholding information from harmed patients, the idea of suddenly inviting open and honest communication might feel awkward, uncomfortable and maybe even dangerous. But, McCoy says, “bad disclosure is worse than no disclosure at all. Everyone’s first exposure to it is scary.”

Interestingly, the CRP-related legislation McCoy helped push through in 2015 began as a collaboration with willing defense attorneys from the Iowa Association for Justice. But if attorneys are the impetus behind deny-and-defend, why would they support CRP? Iowa doctors asked that same question.

Many patients came to them wanting only to know what went wrong, the attorneys explained, but investigative costs were too steep to make it worthwhile. CRP is a game-changer, they say, because — with the full cooperation of health care organizations — they can get the answers they believe patients have a right to know.

Similar stories of cooperation among physicians and lawyers are told in other states, including Erlanger in Tennessee, and in Oregon, where the Early Discussion and Resolution program is available to all state health care organizations.

Not everyone has been quick to accept CRP, perhaps desiring more supporting data or simply because change naturally comes slowly.

“In health care, generally, we see a surprising lag between the development of a best practice and its wide-spread dissemination,” says Gallagher, from the accountability collective, though he notes the distinction between new best practices and barriers unique to CRP, the most imposing of those barriers being fear among:

• Clinicians facing a complex mix of human emotions that can be exacerbated by punitive cultures, a problem that can be mitigated or resolved by a fully integrated system of just culture, beginning with the board and C-suite.

• Physicians about harm cases being reported to the board of medicine or the National Practitioner Data Bank, concerns that might be allayed by organizations agreeing to pay patient compensation.

• Health care leaders, instilled by attorneys who perpetuate “deny-and-defend” practices by forecasting that CRP will open the floodgates to more malpractice suits and financial ruin.

That’s not to mention a fear among attorneys who bill by the hour. Without litigation, there’s no billing. Before the Michigan Model, the University of Michigan Health System used eight trial law firms, but within two years, there were two, Boothman says. “By the time I left, we could barely keep two trial lawyers busy,” Boothman says. “To this day, lawyers will tell me, with 100 percent conviction, ‘If we do this, we’re going up in flames. It’ll lead to catastrophic financial losses.’

“They all believe that, yet there is no research whatsoever to prove that.”

Other Barriers

There are other barriers health care leaders must consider. They include:

• Leadership: Without formal endorsement, total buy-in and ongoing support from the board and C-suite, CRP is unsustainable. “You need physician leaders in the hospital system really going for it,” LeCraw says. “If you don’t have a physician leader as CEO, CMO or any of the top dogs, it’s not going to happen.” Adds Wu: With communication and transparency as the bedrock of CRP, clinicians will clam up if they “get wind that they may be punished for disclosure,” he says. “A really prominent, skeptical person can torpedo the program, so if you have opposition, confront it directly.”

• Finance: Attorneys using fear as a weapon don’t help, especially for organizations already struggling with large deficits. “With so much organizational energy directed toward righting the financial ship, it can be hard to figure out where the organizational bandwidth comes from to adopt this new program,” Gallagher says. Incentive: Some insurance companies are reducing premiums for clients that implement the elements of CRP.

• Collaboration: Build and empower an implementation team that includes a cross-section of the organization to develop a shared vision and strategy for the development and promotion of the program. “CRPs, when they work well, are fundamentally interprofessional — nurses, pharmacists, therapists of all different stripes, and social workers,” Gallagher says. “They’re all critical participants in the event analysis and understanding what happened.”

• Gap analysis: Bring in an outside expert or use the CANDOR Gap Analysis Facilitator’s Guide (available from the Agency for Healthcare Research and Quality, at https://bit.ly/2E8FdEo ) to review your systems, policies and procedures, interview key stakeholders, and review results (strengths and weaknesses) to define next steps for implementation.

• Preparation and systematic implementation: Without proper orientation, education, training and just-in-time resources for medical staff, a program will sink, Wu says. The CANDOR toolkit is an excellent resource. Also important is the uniform and consistent application of the program, meaning all CRP principles — not just early compensation — are applied to all harm event cases.

• Culture: Develop an action plan for creating, stabilizing and sustaining change by setting goals and promoting achievements. Implementing a just culture with a climate of safety and a nonpunitive approach to event reporting is essential to success. “The presence and persistence of a punitive culture can be a killer,” Wu says.

Not all CRP initiatives are successful, but one common thread appears to link organizations that fail. “If their main purpose is early resolution and cost savings alone, the programs tend not to be durable,” Boothman says. “But if the purpose is a more central resolution and commitment to continual safety improvement through honesty and transparency, the programs tend to ‘normalize’ to the point where they truly become part of the culture.”

Compared to deny-and-defend, the principles of CRP are counterintuitive in almost every way. Admit to a mistake? Show compassion? Apologize? Offer compensation before a claim is even filed?

“When you measure this idea against culture of clinical medicine, it’s not counterintuitive at all,” Boothman says. “If you screwed up, let’s just step up and deal with it right now, rather than put you through years of litigation, heartache, and financial and emotional cost. And if you didn’t screw up, what do we have to lose by explaining why you didn’t screw up? But let’s maintain that relationship.”

First Steps

Beth Kaye of the Oregon Patient Safety Commission oversaw the rollout of the state’s Early Discussion and Resolution program, of which she is director. Based on her experience, she offers this advice for those contemplating their own CRP:

• Get educated and inspired. Go to a leader retreat. The CANDOR toolkit is an excellent source for CRP readiness and implementation.

• Minimize internal resistance by inviting all groups in the organization to ask questions, voice concerns and be part of your CRP design and implementation process.

• Challenge yourself to stand in the shoes of your patient or their families. What would you want if it were you? How would you want to be treated?

• Put a patient advocate on the board.

• Invest in a good reporting system and turn unfortunate harm events into opportunities to learn and improve

• Support your clinical staff and front-line staff.

3 Guiding Principles

Not all CRPs are the same, but nearly all align with the Michigan Model, created by lawyer Rick Boothman about 18 years ago as a commitment to reconnect with the fundamental clinical mission of putting the patient first by normalizing honesty and transparency. The model adheres to three principles that serve as a guide in response to adverse events:

1. If someone is hurt through unreasonable medical care, compensate them quickly and fairly. (The word “unreasonable” is deliberately used, as the law and common sense do not require perfection.)

2. Provide powerful support to health care providers if care was reasonable or did not adversely affect a patient’s clinical outcome. (That is, don’t “roll over and cut a check” regardless of effort exerted and protocols followed.)

3. Learn from patient complaints and experiences. (This is to improve quality and safety while minimizing the number of injuries and medical negligence claims.)

A Vicious Cycle

For decades, most health care organizations acquiesced to the “deny and defend” response to medical errors imposed on them by insurance companies and defense attorneys. Because nothing is learned from incidents, errors are repeated, more patients are hurt, costs escalate and the spiral continues.

C.R.P.: Reward vs. Risk

Communication and resolution programs advocate early and open dialogue with patients and families after medical errors and adverse events occur — and prevention of harm to future patients by learning from mistakes and implementing necessary change. Bottom line: fewer errors, fewer claims, less cost.

More Online

• Deny, defend and death: After her newborn son, Michael, died as a result of medical error in 2003, all Beth Daley Ullem wanted was an investigation into what went wrong.

• Wellness as a bonus: CRP is about more than cost savings. There’s evidence that this policy can help reduce stress on practicing physicians working on the front lines.