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• Michelle M. Mello et al., Communication-And-Resolution Programs: The Challenges And Lessons Learned From Six Early Adopters, 33(1) Health Affairs 20 (2014).
• Michelle M. Mello, Susan K. Senecal, Yelena Kuznetsov & Janet S. Cohn, Implementing Hospital-Based Communication-And-Resolution Programs: Lessons Learned In New York City, 33(1) Health Affairs 30 (2014).

In January of 2014, Health Affairs published an entire issue dedicated to new approaches to medical malpractice reform, featuring several jotworthy articles with overlapping lists of authors, including these two led by Michelle Mello. This work is invaluable as it provides an early look at two sets of demonstration projects exemplifying new solutions to the problems of medical error and medical liability.

Across the multiple medical malpractice crises and waves of reform, the traditional debates have focused on ways to reduce the number, amount, and variability of liability judgments—imposing shorter statutes of limitations, interposing screening panels to filter out some cases, narrowing the range of potential expert witnesses eligible to testify, and capping damages regardless of the individualized proof determined by the jury. Regrettably, there is no reason to think that these reforms actually reduced the number of medical errors patients suffer. In fact, they may have exacerbated that problem if they have weakened the (imperfect) deterrence signal sent by liability. This point was sharpened in 1999, when the Institute of Medicine released a report summarizing evidence estimating that over 40,000 Americans were being killed every year due to preventable medical errors: the equivalent of a couple of jumbo jets full of passengers crashing every day.

One of the problems with the liability model for regulating medical error is that it puts physicians and hospitals into a mode of “deny and defend,” where they “man the barricades” against the hordes of money-seeking plaintiffs lawyers, hired gun expert witnesses, and seemingly incompetent juries of laypersons. This adversarial position may not be optimal for engendering a culture of self-criticism for healthcare providers, one where they would admit their errors, identify the causes, and figure out ways to ensure that they do not happen again. The deny-and-defend culture may be antithetical to a culture of patient safety.

These 2014 articles provide early results from “medmal reform 2.0,” as they report on demonstration projects funded in 2010 by the Agency for Healthcare Research and Quality. The two Mello articles describe communication-and-resolution programs (CRP) in which hospitals and insurers have tried new approaches to handling medical errors and patient liability. One hopes that these new models might achieve a patient safety culture while also ensuring that injured patients get the compensation they deserve.

In the first article, Mello and colleagues studied six CRPs, which had adopted either of two models, both of which start with an adverse event being disclosed by the hospital staff to management. One “early settlement” model included the hospital investigating the quality of care provided, and where it was substandard, offering a settlement in exchange for the patient’s written waiver of liability. The other “limited reimbursement” model operated by insurers excluded serious injuries, did not involve an investigation, and did not demand a waiver of liability, but limited payments to $30,000.

Although the article does not discuss the rates of payments made to patients under each program, the data are provided in Exhibit 2. As I analyze the numbers, within the early settlement model, it appears that conditional on the hospital opening a “case” (presumably because the healthcare team referred a serious adverse event to the risk management officials), there is wide variation across hospitals in how often they pay patients, with rates of 44%, 9%, and 55%. With such large variance, an average may not be meaningful, but it would appear to be about 44% of patients receiving payments. (The one hospital that paid 9% of cases also had very few cases.) The three insurers in the no-fault limited-reimbursement model paid about 61% of the cases they opened, with variance being more muted (61%, 54%, and 49%, dominated by a huge number of cases in the first hospital).

Thus, it appears that the no-fault model pays out more often, as one might expect. But in this “no fault” system, 39% of the cases are still not paid. Aside from fault, what other element is missing? The traditional tort elements are duty, breach, causation, and injury. One could speculate that injury or causation element were unmet in these cases: that the patient did not have any reimbursable expenses or that the injury was unrelated to medical care. It is also possible that the patient cut the process short by involving an attorney.

Studdert and Mello (2005) have previously done pathbreaking work to document the “discordant outcomes” that arise from medical malpractice litigation. A “discordant outcome” is a case where the patient-plaintiff should have been paid (because all elements of the claim were present) but was not paid; or a case where the patient-plaintiff should not have been paid, but was nonetheless paid. In these new CRP articles, the investigators made no effort to themselves determine the merit of the claims. Instead we just get the outcomes. Thus, we cannot assess how “accurate” the CRP payments were in tracking the cases involving substandard care, and thus cannot compare it to traditional liability on this dimension. Especially since the limited-reimbursement model purports to be “no fault,” it would be an apples-and-oranges comparison anyway.

Instead, in these new CRP articles, Mello and her co-authors focus on the institutional dynamics involved in adopting such a program. Some hospitals that adopted the first sort of program felt that investigations into the quality of care would be essential to drive improvements. “In contrast, participants in the limited reimbursement programs felt that this model’s no-fault approach would increase participation by reassuring physicians that the program would not lead to adverse consequences.”

The second article evaluates a CRP implemented by five New York City hospitals for serious adverse events arising from their general surgical practice. The hospital endeavored to increase reporting of these events from the clinicians to management, and then tried to support clinical staff as they disclosed the problems to patients. After investigating why the injuries occurred, the hospitals planned to offer apologies and compensation when they determined that the standard of care had been breached.

In this study, the scholars were again unable to assess the accuracy of the hospital’s determination as to compliance with the standard of care, but we do get more granularity in the data about the cases in which they made payments. “Hospital and insurer staff determined that the standard of care was violated in thirty cases and met in ninety-three cases; they made no determination in two cases. Compensation (beyond waiving medical bills) was deemed appropriate in nine of the cases of substandard care and actually offered in four of those cases, plus two cases of substandard care in which compensation was not initially deemed appropriate.” Given the biases known to exist in all self-interested humans, it seems likely that these figures underestimated the true numbers of adverse events and underestimated the rate of medical errors within that set.

It is nonetheless striking that the CRP program paid patients in only 13% (4/30) of the cases in which the hospitals admitted (to themselves at least) that they delivered substandard care, and in less than half (4/9) of the cases in which the hospital itself determined that compensation was appropriate. Strangely, though, “compensation was offered in another three cases in which the standard of care was met.”

Following Studdert and Mello’s 2005 study of traditional liability systems, this new preliminary research suggests that the CRP programs have their own problems with discordant outcomes. One might cogently respond that these hospitals are still operating in the shadow of the traditional liability system, and its distortions may be infecting their choices about whether to pay patients. Still, along the dimension of compensation, these early data do not present a strong argument for dismantling the liability system. Instead, even with these innovative CRP reforms, we might be happy to retain the courts as a backstop for situations where the hospital fails to pay patients that they should.

After evaluating the first twenty-two months of the New York program, the authors conclude that, “We found that all five hospitals improved disclosure and surveillance of adverse events but were not able to fully implement the program’s compensation component.” This sort of evidence is invaluable to the ongoing debates about medical liability reform.

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Cite as: Christopher Robertson, Mello’s MedMal 2.0 Study Documents Discordant Outcomes in the Communication-and-Resolution Programs, JOTWELL (February 26, 2014) (reviewing • Michelle M. Mello et al., Communication-And-Resolution Programs: The Challenges And Lessons Learned From Six Early Adopters, 33(1) Health Affairs 20 (2014).• Michelle M. Mello, Susan K. Senecal, Yelena Kuznetsov & Janet S. Cohn, Implementing Hospital-Based Communication-And-Resolution Programs: Lessons Learned In New York City, 33(1) Health Affairs 30 (2014)), https://health.jotwell.com/mellos-medmal-2-0-study-documents-discordant-outcomes-in-the-communication-and-resolution-programs/.