Medical Apology Programs: A debate about medical malpractice reform
By Lynn Shapiro, Staff Writer
The most formidable alternative to our current medical malpractice litigation system was developed courtesy of former medical malpractice defense attorney, Richard Boothman, who is currently chief risk officer at the University of Michigan Health Systems (UMHS).
Boothman (known as Rick), is the architect of the Michigan Model of Disclosure, Apology and Offer (DAO), an approach to malpractice based on early disclosure of medical errors and non-binding mediation, with court as a 'LAST RESORT ONLY'. [Boothman's caps in an email exchange]
Boothman left the personal injury defense firm he founded, where he represented healthcare systems big and small across Michigan and Ohio, including the Detroit Osteopathic Hospital Corporation, Kaiser Permanente and The Cleveland Clinic.
He was also one of the longest-running trial attorneys for the University of Michigan Health Systems, prior to accepting what appeared to be an unlikely job at UMHS as assistant to the General Counsel, when his predecessor abruptly resigned.
He knew the University of Michigan to be a culture of excellence, the place where he wanted his communication and resolution movement to take root.
Boothman says the Michigan Model would not have flourished without several UMHS physicians including: Lazar Greenfield, MD, PhD, and his mentor, Darrell A. (Skip) Campbell Jr, MD,--then UMHS chief of staff-- who used their influence to persuade Michigan’s top brass to abandon their traditional “deny and defend” approach.
Once inside the University of Michigan Health Systems' eight-hospital consortium, Boothman and Campbell wasted no time pressing Boothman’s mediation program through a reluctant administration.
The savings delivered by Richard Boothman’s Michigan Model of Disclosure, Apology & Offer (DAO), are most likely to be duplicated by his six-hospital pilot program at Harvard-affiliated Beth Israel Deaconess Medical Center (with three sites) and stand-alone Bay Shore Hospital (with 3 sites). These results are expected to be published later this fall in in a major medical journal.
When hospital administrators read the new data showing significantly improved savings when litigation is excised from the liability equation, some argue that they will think of Boothman’s DAO model as an alternative to our current “deny and defend” justice system.
Boothman says what’s happening now is he’s waiting for two milestones to occur.
The first milestone will be set following publication of what he calls some “exciting and favorable” data from his pilot program in Massachusetts, launched with a $300K seed grant by President Obama in October, 2009, under the umbrella of the Health and Human Services Agency for Healthcare Research and Quality (AHRQ).
It was back in the day when Democrats controlled both Houses of Congress and the legislature gave out grants to reduce healthcare errors.
In September, 2010, the same Democratic-controlled Congress enacted the Affordable Care Act, before Congress suffered a huge defeat in both Houses of Congress in the 2010 midterm elections. After that, the Obama Administration had to fight just to keep Obamacare alive.
In a 6-3 decision on June, 25, 2013, The Supreme Court declared the Affordable Care Act to be a constitutional excise tax.
Boothman’s second milestone was set in May, 2016, when the AHRQ unveiled the “CANDOR Toolkit” to hospitals nationwide. (CANDOR is an acronym for Communication and Optimal Resolution).
The “Toolkit” is an instruction manual for hospitals, based in large part on the Michigan Model.
It was constructed with a $23 million Patient Safety and Medical Liability grant, initiated by President Obama’s AHRQ, in October, 2009, at the same time he gave Massachusetts its exploratory pilot grant.
The “toolkit” has been tested in 14 hospitals across three US health systems. (http://uofmhealthorg/indsutry-dx/hospitals-can-break-through-the-wall-of-silence-new-toolkit).
Unprecedented Massachusetts Collaboration
Meanwhile, the DAO Model pilot program in Massachusetts was launched by the so-called “unprecedented collaboration” between the Massachusetts Medical Society and the Massachusetts Hospital Association.
The legislation for the program was included in the Health Care Cost Control Bill, in August 2012, with input from The Massachusetts Medical Society, Massachusetts Bar Association, Massachusetts Academy of Trial Attorneys and patient advocacy groups.
The decision to adopt the DAO model was based on the “belief that our current medical liability system is broken and that it serves neither patients nor providers well,” says Melinda B. Van Niel, MBA, project manager, for the Massachusetts Alliance for Communication and Resolution Following Medical Injury, (MACRMI), Department of Health Care Quality, Beth Israel `Deaconess Medical Center, of Harvard Medical School. (http://www.macrmi.info/#sthash.BuX2RapU.dpbs).
Currently MACRMI is drafting an article on its three-year pilot program results, to be released for publication later this fall, Van Niel confirms.
Insurance Company Backing
The major malpractice insurers that supported the MACRMI strategy are: CRICO RMF, Baystate Health Insurance Company and Coverys.
MACRMI purposely chose both captive and commercial insurance models, to prove the program could work in a variety of ways, Van Niel says.
Michigan uses a captive insurance company: Blue Cross.
In preparation for the launch of the Michigan Model pilot program, Massachusetts passed a law in 2012, implementing a six-month cooling off period, similar to Michigan’s law, during which time extensive discovery is conducted. (Alan C. Woodward, M.D., a past president of the Massachusetts Medical Society, was the driving force behind Massachusetts’ implementation of the Michigan Model, Boothman says.)
An adverse medical event triggers the following:
- Providers communicate with patients and families.
- Adverse events are investigated and patients are given an explanation of the findings of that investigation, including an apology or statement of regret determined by the circumstances.
- System improvements are implemented to avoid recurrence of the incident, thereby improving patient safety.
- In cases where an error or adverse event did not meet the standard of care and caused the patient harm, fair financial compensation and other forms of resolution are offered to the patient without having to file a lawsuit.
Mediation as an Option
Roy Konray, of personal injury firm, Tobin, Kessler, Greenstein, Caruso, Weiner & Konray (Clark, N.J.), is more willing to embrace non-binding mediation:
“What distinguishes exploitive mediation from non-exploitive mediation," Konray says, "is the degree to which patients are encouraged to retain an attorney for the initial mediation session.
"If the patient is strongly encouraged to obtain counsel, then non-binding mediation will be a godsend to patients and to physicians.
"If patients are simply told obtaining counsel is an option, then a large percentage of patients who hold off on retaining counsel are likely to be hoodwinked into accepting inadequate settlements for a variety of reasons, such as long-standing relationship dynamics with their physician, or because they are likely to be alone in a room with multiple authorities advising them to accept the settlement, or because of lack of knowledge about legal considerations such as liens or verdict potential."
Boothman Rebuts Konray
“It might surprise him that some patients find it offensive to be told that we wouldn’t talk to them without a lawyer present,” Boothman says.
“It might surprise him to find out that some patients make a decision not to share 33.33% of their settlement with a lawyer.
"He seems to be drawing a distinction between ‘strongly encouraging verus ‘it’s an option’. We do both, actually.
"If there is any concern about competence, either because of minority, or a perception that a patient lacks the sophistication to address a concern, or sometimes simply because of the size of the settlement, we will insist that they have a lawyer and we offer them a list of Michigan’s best med mal plaintiff’s lawyers.
"In other cases, we are respectful of the patients and their wishes.
"The other aspect of this that this lawyer doesn’t understand is the reason why this program is followed – it’s NOT to reduce med mal costs. It’s to create a culture of accountability around the patient safety.
"And it’s using the statutory notice period in Michigan to engage with honesty that sets us apart… It’s refusing to dish-off injured people to lawyers before we even know if we should be proud of the care or not that’s a hallmark [of the program],” he concludes.
Apology AND Compensation?
Evan Sarzin, a civil litigator at Sarzin Law in New York City, says since Michigan and Massachusetts programs use their six-month cooling off period to conduct what amounts to peer review and discovery, "the discovery process will happen on a voluntary basis for the purposes of settling."
“Cases of relatively low value that may not be worth litigating could be worth taking on and settling if the high cost of malpractice litigation is removed from the equation," Sarzin says.
"This benefits the patient who wants some recompense and closure, as well as the attorney, who can avoid the pitfalls of unprofitable cases.
"And in high-value cases, the attorney can learn the merits of the case at the outset, rather than investing a lot of time and money before learning if it is meritorious enough to pursue.”
He is heartened by Boothman’s philosophy that “accountability and communication are sorely missing from health care in many areas,” as Sarzin puts it.
However, after seeing a bar chart from Boothman's PowerPoint presentation at the March 11, 2016, National Health Policy Forum in Washington, DC, Sarzin grew more skeptical of Boothman’s so-called transparent and quality-based mediation program.
Sarzin notes the amount paid out where Standard of Care (SOC), was NOT met has become much lower, relative to 1999 levels. (The Michigan Model was officially started in 2002.)
“Is the payout lower because of the apology that may substitute for fair monetary compensation; because of better standards; or both?” Sarzin asks.
“The chart doesn't tell you what a plaintiff’s lawyer would want to know. It does not give you the number of claims or the SOC split between met and unmet standard of care.
"As to specific cases, we don't know the 'trial value' of the cases, the settlement discount taken by the patient, the amount of liens the patient must pay, whether the patient had an attorney and the fee charged (contingency or other) and other information that is necessary to interpret the program from the patient’s point of view.
“There are lots of moving parts," Sarzin concludes.
Boothman says, “The graph isn’t properly reproduced--the green column is the column where we agree the standard of care was not met.
"Unfortunately, that column remains too high, but there is no question in our minds that we are to blame in those cases and removing that ambiguity allows us to focus on the clinical problems and get them fixed – the most important person to us is not the person who was injured – the most important person is the one we haven’t injured yet.
"The blue column is “service recovery”, meal vouchers, gas cards, hotel rooms, small compensation for rude staff, mixed up appointments and the like.”
Joanne Doroshow, the executive director of the Center for Justice & Democracy at New York Law School, is not a Boothman fan.
She says she finds his program to be dangerous in that unwitting patients who have no legal counsel are taken advantage of by claims managers.
“Hospitals should be ethically prohibited from approaching and negotiating with a patient without an attorney,” she says.
Senator Clinton Recruits Boothman
Clinton and Obama have been Michigan Model supporters since Boothman contributed to a little-known but important piece of their defeated communication and resolution legislation: their 2005 MEDiC Act.
Boothman says it was Brenda Ritson, MD, a staff person working on Hillary Clinton’s senate staff, who contacted him in 2005 and asked if he would work with Clinton on a program that borrowed certain elements of his approach for healthcare legislation Clinton wanted to roll out nationwide.
Not a Bill Clinton Fan
“I was not a Bill Clinton fan at the time and was leery about aligning myself with any one side, politically, “Boothman tells PersonalInjury.com.
“I asked Ritson a simple question: ‘Does the Senator want to win this or fix it?”
“Senator Clinton called me back and assured me she wanted to fix things (and from my working with her and her staff, she was always true to her word, and a very smart woman, even with respect to intimate aspects of med mal.)
“That conversation led to a working relationship toward the MEDiC Act, legislation that Clinton and Obama unveiled in September of that year.
“I was invited to the press conference at the time”, Boothman says.
He adds it was rumored that Senator Ted Kennedy “squashed the legislation in committee because he perceived it as an infringement on patient’s access to the courtroom.”
No Caps on Damages
Wanting their communication and resolution approach to lead the discourse on apology programs, Clinton and Obama wrote a New England Journal of Medicine article in May, 2006, in which they discussed their malpractice views with physicians.
Clinton and Obama wrote:
“To improve both patient safety and the medical liability climate, the tort system must achieve four goals: reduce the rates of preventable patient injuries, promote open communication between physicians and patients, ensure patients access to fair compensation for legitimate medical injuries, and reduce liability insurance premiums for health care providers [by requiring insurance companies to pass on their savings gained from using mediation on to doctors.]
"Capping malpractice payments may ameliorate rising premium rates, but it would do nothing to prevent unsafe practices or ensure the provision of fair compensation to patients,” Clinton and Obama wrote 10 years ago.
They argued further that, “The current tort system does not promote open communication to improve patient safety.
"On the contrary, it jeopardizes patient safety by creating an intimidating liability environment.
"Studies consistently show that health care providers are understandably reticent about discussing errors, because they believe that they have no appropriate assurance of legal protection.
"This reticence, in turn, impedes… efforts to prevent medical errors." (http://www.nejm.org/doi/full/10.1056/NEJMp068100)
The two Senators also cited Boothman’s extraordinary cost-savings as a result of replacing litigation with mediation
Boothman believes his pilot programs would flourish nationwide under a Clinton presidency, pending Congressional approval.