My bad

I’m sorry.

Those two words could go a long way in cutting health care costs, experts say, and some Massachusetts hospitals in conjunction with the Massachusetts Medical Society are launching a three-year program to determine just how effective a deterrent an apology can be in reducing malpractice costs.

The initiative, called “Roadmap to Reform,” is being announced in conjunction with a report being issued today that draws on interviews over the past year with doctors, hospital administrators, lawyers, patient advocates, and state officials about what changes are needed in addressing tort reform and potential barriers to implement those changes. The effort is focusing on disclosure of what went wrong, an apology, and an offer of settlement without litigation. It’s patterned after a Michigan program that was profiled in CommonWealth in 2010.

The hospitals participating in the pilot program are Beth Israel Deaconess Medical Center in Boston; Beth Israel Deaconess Hospital-Needham; Beth Israel Deaconess Hospital-Milton; Baystate Medical Center in Springfield; Baystate Franklin Medical Center in Greenfield; Baystate Mary Lane Hospital in Ware, and Massachusetts General Hospital.

“It’s the recognition for years that the [litigation] system doesn’t work well for patients, and doesn’t work well for physicians and providers and doesn’t work well for the health care system as a whole,” says Dr. Alan Woodward, past president of the medical society and chairman of the group’s Committee on Professional Liability. “One of the problems is, patients never get an ‘I’m sorry’ in the current system.”

In addition to interviews with stakeholders, the report’s recommendations are based on an analysis of a similar program at the University of Michigan Hospital that has drastically reduced the number of lawsuits and the amount spent on medical malpractice premiums, an area where many physicians say is forcing them to cut back on patient care and pushing some doctors out of specialties that are open to lawsuits such as obstetrics.

Woodward, who has been an emergency room physician for more than 30 years, says data shows that in the 10 years since the program was implemented there, patient injuries and claims have dropped 50 percent and the number of lawsuits has fallen by 90 percent.

In Massachusetts, medical malpractice premiums and claims account for less than one-half of 1 percent of health care costs but Woodward points out that many physicians practice “defensive medicine” because of the threat of litigation and order unnecessary tests to protect themselves. Woodward says those costs can be as high as 35 percent of overall health care spending.

In addition, Woodward says patients usually get one-third of what is spent on malpractice – if they win – with the rest going to lawyers and administrative costs. The average length of a medical malpractice suit in court is 5½ years, where, under the proposed program of disclosure, apology and offer, the time frame can be as little as six months.

There are some barriers to overcome as well, including state laws that cap charitable liability at $20,000, which is one of the reasons doctors are the prime targets rather than hospitals. The report says hospitals can enter into negotiations and waive the cap by making an early offer that is acceptable to patients who may have had an adverse outcome from a hospital procedure.

The program would not alter current law, which only requires malpractice payments to be publicly reported. Dr. Kenneth Sands, senior vice president for health care quality at Beth Israel in Boston, says the state’s medical board has expressed concerns that the apologies and acknowledgments of errors would be shielded from the public. Sands said the pilot program will work to address that.

The report indicates that litigation takes an emotional and physical toll on doctors and has a lasting effect on how they approach their patients. Some doctors involved in the initiative says the relief that physicians no longer have to feel infallible can bring major changes to the health care system in costs and results.

“There clearly is behavior that has been documented where clinicians order tests in order to be sure that they are not susceptible to litigation,” says Sands. “If some of that behavior could be eliminated, it mitigates that but it makes it a less of a life-changing event for everyone. Instead of a five- to seven-year court battle, it is an ongoing conversation. It acknowledges that doctors are human and capable of human error”