OPEN DISCLOSUREA 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” Strategy
The
Result
The
Cost
The
Irony
• This inefficient and costly response to patient complaints
drove up litigation and exposed doctors to more legal
claims and also increased patient dissatisfaction
• 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)
• 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