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Defensive Medicine: Is Apologizing the Answer?

Tags: | Comments: 1 | February 26th, 2014

Defensive Medicine Patient and Doctor

Over the last few weeks we’ve been considering the problem of doctor’s feeling pressured to practice defensive medicine and the costs associated with that as well as some of the proposals that have been made to combat these problems.  As we’ve noted in previous articles simply put defensive medicine is the practice of ordering medical tests, procedures, or consultations of doubtful clinical value in order to protect the prescribing physician from malpractice suits.   And it is costing us an estimated $650-$850 billion dollars a year.  In previous posts we’ve considered the merits and challenges of tort reform, no-fault patient compensation systems, and the safe-harbor model that uses approved clinical guidelines to direct and shield doctors from liability.

Today’s post is the next to last in our series, and will consider the model commonly referred to as disclosure, apology, and offer or DA&O.  This is a model that attempts to allow doctors and hospitals to be proactive in dealing with adverse outcomes rather than feeling that they have to retreat to a de facto deny-and-defend posture.  Under a DA&O model when an adverse outcome occurs doctors and practices are encouraged to acknowledge it in a timely fashion, apologize to the patient when appropriate, make assessments as to how risk management can be improved and similar outcomes avoided going forward, and, when appropriate, make a reasonable offer of compensation.

While this kind of approach may sound too simple to be of any value, or may even strike some as naïve, there is some evidence that suggests that such a model has significant benefits.  The University of Michigan Health System adopted a DA&O approach over a decade ago and has seen an increase in error reporting from physicians, with a decrease in malpractice claims, costs per claim, and insurance reserve requirements, while also speeding up the average claim resolution period.

Following UMHS’s example Massachusetts became the first state to adopt a full-fledged DA&O system statewide in 2012.  The system, signed into law by Governor Deval Patrick, provides for a six month, pre-litigation, cooling off period in which doctors are encouraged to acknowledge and disclose adverse outcomes, apologize to patients, explain how systems are being improved to prevent similar problems in the future, and make a reasonable offer of compensation.  Under the law patients of course still have the right to work with an attorney and can always refuse the offer made and take the case to court, however, apologies made during this process would be inadmissible in a trial making it more feasible for doctors to make a serious effort at resolving issues prior to litigation.  While it’s too early to say what the long-term impact of the reform will be in Massachusetts, early reporting is positive and the evidence from UMHS and other similar programs, such as the one at Stanford Hospital, point to positive results.

One of the promising aspects of DA&O as a model is its broad appeal.  Unlike tort reform or the safe harbor model, DA&O tends to unite the various stakeholders in the malpractice arena.  In Massachusetts, for example, the Massachusetts Medical Society, the Massachusetts Bar Association, and the Massachusetts Academy of Trial Attorneys were able to come to an agreement on language that eventually made its way into the healthcare cost control bill that shaped the DA&O system for that state.  These are groups that rarely agree on proposals relating to malpractice, and have very different, some would even say competing, interests.  Nevertheless, Disclosure, Apology, and Offer is a model that they can apparently all get behind.

So the positives are pretty clear.  DA&O models hope to benefit doctor-patient relationships while relieving pressure by allowing doctors to be frank and honest with their patients, and to retain the human element by apologizing when necessary.  This, in turn, will presumably make some, maybe eve most, patients more open to a settlement that is non-adversarial.  In the meantime, because errors are reported early and with greater openness and less hesitation the information gleaned from that reporting can be synthesized into a process of regular reform and improvement of systems and procedures to reduce mistakes and adverse outcomes.  Additionally, by settling more cases out of court costs are reduced both through the reduction of legal representation costs and through reduced payouts—the idea being that a patient whose circumstance has been acknowledged and apologized for is likely to be satisfied with a reasonable amount of compensation rather than going for all he or she can get in a combative trial situation.  Finally, advocates of DA&O systems point to a reduction in the time it takes to process claims as yet another benefit.  We all know that malpractice cases can take years to work through the courts, but in the DA&O model one of the chief strategies is to deal with issues that arise early and in a timely fashion.  Dragging things out is as likely to upset the patient as it is the doctor so speed is a chief element in the conflict resolution scheme.

We’ve heard the positives, but what about the negatives?  What do critics of the DA&O model say?  Well, there aren’t a lot of people actively criticizing this model but there are some challenges.  The first is simply that we don’t know how well it would work on a large scale.  Yes, it has been a success at Stanford and the University of Michigan, but those are both private enterprises.  Will it work across an entire state with multiple insurance markets, varying interpretations of the law, and all the complexities that come with scaling something from a single private entity to a statewide standard?  Hopefully so, and we can be optimistic, but the reality is that it will be a few years before we have hard data to work with.

Another hurdle to get over if DA&O is going to effectively address the costs of defensive medicine is simply convincing doctors.  While claim numbers may go down when a DA&O model is implemented, according to the Jackson Healthcare survey we mentioned in the first post in this series over 90% of doctors surveyed in Massachusetts said that regardless of the program they would increase or leave unchanged their practice of defensive medicine.  Physicians in Oregon, where a similar law is being considered said the same—90% would increase or leave unchanged their practice of defensive medicine.  So even if DA&O reduces costs overall, will it actually reduce defensive medicine?  Perhaps over time if doctors see a substantial reduction in claims and begin to feel that the legal environment is more secure their responses will change, but at the moment there doesn’t seem to be enough confidence in the legislation to substantially change the way doctors practice.

Overall it seems that DA&O is a promising model for reform, and could likely save quite a bit of money for states that implement it.  It might even lead to significant reductions in the practice of defensive medicine over time.  But as with any reform of this scale it will be a slow process with states like Massachusetts (and maybe Oregon soon) pioneering the approach and hopefully giving us data with which to asses effectiveness and consider ways to improve the model.  And as with other reforms DA&O likely won’t be sufficient to combat the costs of defensive medicine on its own, but coupled with common sense tort reform, including caps on non-economic damages, it could be a very promising piece of the puzzle.

For more information and regular updates on DA&O reform you can check out this advocacy site.

This post was written by Justin Donathan.
Justin at Google+


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  1. Pingback: Defensive Medicine Arbitration: Is it Feasible? - eQuoteMD Blog

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