Inside Medical Liability

Second Quarter 2021

Are Communication and Resolution Programs the Wave of the Future?

MACRMI offers a transparent, repeatable process

By Melinda Van Niel and Alan Woodward, MD

We all know the golden rule—treat others as you yourself would like to be treated. When something unfortunate happens, we hope for sympathy and kindness; when someone wrongs us, we hope for an apology and forthrightness. This is the mantra by which Communication and Resolution Programs (CRPs) operate.

As CRPs gain in popularity, hospitals and healthcare organizations across the country are adopting this model. This trend offers the potential to change the prevailing method by which medical adverse events are resolved—through lawsuits and courts. During the past several decades, fear of exorbitant verdicts drove transparency and, in some cases, compassion underground.

Through creating processes and demonstrating the utility of this proactive mode, CRPs are attempting to reverse this trend by building empathy for patients who have experienced adverse events. Requesting managers and employees involved in the medical professional liability (MPL) dispute resolution process to consider what they would want if they or one of their relatives experienced an adverse event has moved the curve, personalizing a situation that could previously be adversarial.

The ABCs of CRPs

CRPs are comprised of four main components:

Communicate with patients and families when unanticipated adverse outcomes occur, express empathy, and provide for their immediate needs.
Investigate and explain what happened to the patient and family.
Avoid recurrences of incidents and improve patient safety through implementing systems.
Apologize and work toward resolution in the cases of avoidable injury including, if appropriate, an offer of fair compensation without the patient having to file a lawsuit.

For CRPs to be effective, both the clinicians involved in the patient’s care and the executives and administrators in the organization’s quality improvement department must buy into the premises of transparency, proactivity, and honesty in the assessment of adverse events. Though most adverse events are not preventable, those that are can do lasting damage to the patient, the providers involved, and the facility if not handled appropriately using the four CRP components.

Even those adverse events that are not preventable need to be dealt with in a way that will address the patient’s concerns in an empathetic, direct manner so that those patients and their families do not feel abandoned and ignored due to the unexpected outcome. These cases that do not require compensation but require additional communication and empathy are the most frequent, and often the most important in establishing a healthy, respectful relationship with a patient who has experienced an adverse outcome.

Transforming the MPL process in Massachusetts

The journey to transform the medical liability process in Massachusetts is a decades-long one. Instead of creating better outcomes, the medical malpractice resolution system was generating distrust and defensive medicine, a challenge that was recognized by the Massachusetts Medical Society. In 2012, the Massachusetts Medical Society joined with Beth Israel Deaconess Medical Center to apply for a grant from the Agency for Healthcare Research and Quality (AHRQ) to develop a roadmap for implementing a CRP model in the Commonwealth.

A series of interviews of MPL stakeholders including physicians, attorneys, insurers, healthcare executives, and patient advocates, revealed the flaws in the current system and a desire to explore the CRP model as an alternative. At that time, CRP-type programs had only been adopted at a few self-insured facilities around the country. The University of Michigan, among the notable pioneers, found that during a 10-year period there was a decrease in new legal claims, number of lawsuits per month, time to claim resolution, and costs after implementation of a CRP program.

Many stakeholders in Massachusetts believed that something similar could work well in the state with the right support, and the AHRQ grant study provided a means to address potential barriers to implementation, which could hinder that support. As a result of this study, the Massachusetts Alliance for Communication and Resolution following Medical Injury (MACRMI) was founded, and CRP-enabling legislation developed jointly by the Massachusetts Medical Society and the Massachusetts Bar Association was passed in July 2012.

The founding of MACRMI marked the first-ever multi-stakeholder coalition focused on transforming the medical liability landscape in a state. MACRMI creates resources for organizations to implement CRPs and maintains a website to house those resources for free. In addition, MACRMI has gathered data through an extensive CRP pilot program and published results in several peer-reviewed medical journals. For member participants, the program offers an opportunity to discuss and address challenges with CRPs in real time while spreading those lessons through free annual forums for attendees from across the nation.

CRPs: Proven results

The Massachusetts pilot study of six area hospitals was the largest study of any multi-facility CRP, with data for nearly 1,000 cases analyzed over a three-year period. It was also the first time a CRP analysis was conducted to remove the influence of MPL trends in the state by comparing data to similar academic and community hospitals outside of the pilot cohort that were not participating in CRPs. This study was also the first attempt to analyze two different types of insurance models: self-insured captive and external shared captive.

The study found that CRPs did not increase claims or litigation costs, and in many cases decreased them. It also found providers highly supportive of the program. This information bolstered MACRMI’s mission to make Communication, Apology, and Resolution (CARe) the primary method of resolving adverse events in Massachusetts healthcare facilities. They aimed to replicate these results.

Theoretically, the CRP approach appeals to many healthcare facilities across the country—everyone knows how they would want to be treated if something went wrong during their own medical care—but few facilities had been able to implement and sustain programs over time. MACRMI was determined to create a framework and materials to help facilities’ programs succeed and offer the support needed to do so.

In an effort to lower barriers to entry, MACRMI offers its resources for free on its website’s resource library at www.macrmi.info. All resources developed were created and approved by the board of MACRMI members, which include participants from healthcare organizations with CARe programs, the Massachusetts Medical Society, the Massachusetts Bar Association, the Massachusetts Hospital Association, the Massachusetts Coalition for Prevention of Medical Errors, the state’s largest MPL insurers—CRICO, Baystate Health Insurance Company, and Coverys—and the Betsy Lehman Center for Patient Safety.

MACRMI also provides free implementation assistance to hospitals or healthcare facilities in Massachusetts that want to get CRPs off the ground, and meets quarterly to discuss challenging trends or case resolution issues cropping up for the alliance’s members. They have 11 facilities with fully implemented programs and are assisting with seven more that hope to be up and running by 2022.

Expanding nationwide

Nationally, the CRP approach is catching on. AHRQ has developed its own free toolkit, called CANDOR, which was created by CRP pioneers across the country, including members of MACRMI. To date over 200 facilities have at least begun their journey to implementing CRPs, and the trend only continues to grow.

There is a National Collaborative for Accountability and Improvement which aims to educate and support those facilities journeying toward “the right thing to do.” There have also been changes to the way that cases are reported to the National Practitioner Databank (NPDB)—one of the primary anticipated “barriers” to the CRPs’ proactive approach to resolving adverse events.

MACRMI has worked with the MPL Association and other organizations to change the way federal reports are filed with the NPDB. Now, when a report is made to the databank on behalf of an individual physician—although many are found through root cause analysis and expert review to be rooted in a systemic cause, which would not require reporting—it can be categorized as “other” rather than as a settlement or award resulting from litigation. Additional information about how the case was resolved through a proactive and honest CRP can be added in the revised description field in the form as well.

MPL insurers: An essential partner

MPL insurers are an essential piece of the CRP puzzle; the program simply cannot work without their support. Initial worries about increased claims and costs have been laid to rest, but it can still be a challenge for insurers to embrace facilities being proactive with patients, admitting responsibility, apologizing, discussing future improvements, and offering compensation in a rapid and compassionate way.

However, the benefits of improved patient safety, better lives for patients and providers, and reduced and streamlined workflow cannot be realized without using the program “every case, every time.” Liability insurers can play an important role by eliminating gag clauses and encouraging physicians to openly communicate with patients—and MACRMI has developed best practices to help guide insurers who want to make the shift to using CRPs with their healthcare organizations.

CRPs can help us move toward a safer, more humane healthcare system in the United States. When our patients are in distress and experiencing a health outcome that is unexpected and difficult, that is when they need us most. It’s time we committed to taking the moral and ethical high road to change our medical liability system for the better, for everyone. For related information, visit www.macrmi.info. Melinda Van Niel is the program\manager of the Massachusetts Alliance for Communication and Resolution Following Medical Injury (MACRMI). Alan Woodward, MD, is the past president, Massachusetts Medical Society and a member of the MACRMI Leadership.

Coverys Collaborates with MACRMI to Improve Patient Safety

For decades, the medical professional liability (MPL) environment in Massachusetts—and throughout the United States—was largely characterized by mistrust and defensive medicine. In an effort to create better outcomes and improve patient safety, Coverys and other MPL stakeholders joined together to create the Massachusetts Alliance for Communication and Resolution following Medical Injury (MACRMI).

“Our collaboration with MACRMI is the perfect endeavor for Coverys, because it gives us the opportunity to not only promote and recommend best practices surrounding avoidable medical harm but also to put patient safety front and center,” said Jan Puchalski, senior risk consultant at Coverys, an MPL insurer based in Boston, Mass.

Under MACRMI’s innovative model, avoidable medical harm is dealt with from a compassionate and practical perspective. MPL stakeholders, including insurers, engage in best practices surrounding these events, communicating with affected patients and their families in a supportive, sincere manner. “The very first step in this model is to allow the patient who has been impacted by avoidable medical harm to speak out and put their concerns on the table,” she said. “This ensures they are heard, and all their questions are answered.”

Spreading communication and resolution programs nationwide

If your organization is considering creating a Communication and Resolution Program (CRP), adopting the mindset and processes inherent in a program such as MACRMI will strengthen and improve risk and patient safety programs, Puchalski described. All organizations involved in this model rigorously train clinicians and administrators to communicate with affected patients following adverse events.

“There are so many benefits to adopting CRPs,” said Puchalski. “Besides improving patient safety, there’s the experience of a quicker resolution time frame, fewer nuisance claims, increased transparency for both patients and providers, and less stress.”

All parties in CRP benefit. One aspect of the resolution provided by CRPs that isn’t always top of mind are the benefits for providers who were involved in avoidable medical harm events. Known as the “second victims,” providers may experience stress and anxiety that may negatively impact their professional and personal lives. “Supporting them emotionally through this period is an important step in the process,” Puchalski added.

Patients who are affected by avoidable medical harm also experience stress, anxiety, and depression. The Financial and Human Cost of Medical Error, a study from the Betsy Lehman Center for Patient Safety, reveals that transparent communication with patients and their families who have experienced adverse events is correlated with lower levels of these emotional responses and avoidance of healthcare.

“More than 60% of respondents were dissatisfied with the communication from their provider after the medical error. But when providers communicate openly, patients report lower levels of emotional harm. Open communication has a similar effect on reducing healthcare avoidance—from 45% (without open communication) to 26% (with open communication),” according to key takeaways from the study.¹

Improving care and safety

Puchalski believes that the first motivation for organizations adopting a CRP should be to improve care and patient safety. “Yes, there is a probability that implementation of a CRP will decrease claims and, therefore, costs,” she added. “However, that is not the reason to adopt this kind of program. The number one reason is to do the right thing by improving communications and offering apologies to those affected by avoidable medical harm.”

When the standard of care was met in a medically adverse event, it’s still important to investigate the situation, find out what happened, explain it to the patient—and their family, if appropriate— and apologize. “If there was an injury, even if the standard of care was met, a sincere apology is an important part of the process,” said Puchalski.

In cases where the standard of care was not met, appropriate compensation occurs at the insurer level, whether that insurance entity is an external MPL insurer or an internal captive insurer. The MACRMI CRP process encourages legal representation for the affected patient so that they understand what is being communicated and what type of compensation is being offered. “In some cases, the family or individual will accept the compensation offer; in other cases they will not. It really depends on the individual situation,” she explained.

Ultimately, the goal of MACRMI is to spread the word about CRP programs and help organizations modify the model to fit their unique needs. “Our goal is to share our experience and resources to help other organizations and states successfully implement a program that not only improves patient safety, but also creates transparency and shares best practices,” Puchalski concluded.

References

1. “The Financial and Human Cost of Medical Error,” Betsy Lehman Center for Patient Safety,” June 2019, https://betsylehmancenterma.gov/assets/uploads/Cost-of-Medical-Error-Report-2019.pdf.