Saying sorry

Rick Boothman still thinks about a malpractice case he won 30 years ago. Fresh out of law school, Boothman represented a surgeon who had been sued by a former patient. “As the jury was filing out, the lady who sued my client leaned around the podium and I learned this was the first time she’d talked to him in three or four years,” he recalls. “She said, ‘If I’d known everything you said in the courtroom, I never would have sued you.’”

Boothman remembers being surprised by the woman’s reaction—and intrigued by the idea that a simple conversation might have prevented an expensive, multi-year court procedure. “I was still wet behind the ears, right out of law school, but I remember thinking to myself, ‘Wow, that’s a long way to go to have a conversation,’” he says.

Boothman, now the chief risk officer at the Univ­ersity of Michigan Health System in Ann Arbor, has since put his idea to the test by changing the way his health system responds to threatened and actual lawsuits. The results of the new approach, which was launched in 2001, are striking and may have implications for Massachusetts, where some physicians hope to see state law changed to facilitate more open doctor-patient communication when allegations of possible malpractice are raised.

The University of Michigan Health System operates three hospitals, a medical school, and dozens of health centers. Prior to 2001, the system typically cut off communication between doctors and patients while parties prepared to go to trial. Now, the system conducts an internal review of each case and shares the findings with the patient —including whether the physician acted in error. It also facilitates conversations about what happened among patients, physicians, and their lawyers.

Boothman says many doctors initially feared that more openness would invite more lawsuits. In fact, the opposite is true. In 2001, 121 lawsuits were filed against the university. In 2002, the first full year under the new system, there were only 88 new claims, a number that has held steady in subsequent years. Boothman doesn’t take full credit for the drop, noting that malpractice lawsuits have declined nationally during the same time period. But he says a culture of frankness has led to quicker resolutions and settlements for patients, and to doctors being more willing to discuss, and learn from, their mistakes.

“If we’ve proven anything, I hope we’ve shown that being open and honest doesn’t cause the litigation sky to fall in, doesn’t invite litigation, doesn’t increase settlement costs or anything else,” says Boothman. “Given a chance, our patients are far more forgiving than we previously believed. I can say that once we made our staff safe by expertly working hard to resolve the claims that needed to be resolved through a principled approach, our doctors both embraced this approach and have in a palpable way turned their attention to patient safety like never before.”

The system has more quantifiable benefits: Patients who do file claims don’t wait as long for closure since the average case now lasts 10 months instead of 20. Malpractice insurance costs have stayed level in the university’s system over the last 10 years even as the system got larger. By comparison, in Massachusetts, average malpractice insurance costs rose 132 percent between 1992 and 2005. A typical malpractice case in Massachusetts lasts for over five years.

The university medical system’s approach depends upon two key aspects of Michigan law, which underwent significant tort reform in 1994: Physicians know they can apologize, or express regret and sympathy for what happened to a patient, without having their words used in court as an admission of negligence. The state also requires that a plaintiff’s lawyer file a notice-of-intent to sue 182 days before doing so, allowing for a cooling-off period in which, at least some of the time, patient and doctor and their lawyers can talk about what happened.  

And conversation is key, as Boothman discovered in court and according to some individuals who have experienced medical errors first-hand. Doug Wojcieszak lost his oldest brother in 1998 at an Ohio hospital. “It was typical cover-up,” says Wojcieszak. “He died in a hospital where they misdiagnosed a heart attack and mixed up his charts. No one talked. We sued, and the judge forced a settlement. We got money, but we never got an apology or emotional closure or were told what the hospital would do to make sure it would never happen again.”

Wojcieszak, who works in public relations, has since made changing the often adversarial relationship between patient and doctor both a personal and professional crusade. He runs Sorry Works, a company that consults with doctors and hospital officials who want to imitate the results in Michigan. He says he’s worked with medical providers all over the country, and many of them have gone on to adopt new policies for disclosing medical errors to patients. Not all are patterned after the Michigan approach, but many are, including one at the medical center at the University of Illinois.

“When I started doing this work five years ago, every time I went to give a speech, I’d be ready for a fight,” Wojcies­zak says. “Now, when I give presentations, there’s none of that. Hospitals, doctors, insurance companies are all interested. The debate isn’t whether we should do it, it’s how: How to say sorry.”

He says some medical providers imagine that sorry will be a magic bullet—and patients won’t also want compensation. His experience suggests otherwise; in cases of real injury, particularly the sort that lead to lost wages and ongoing new medical expenses, he says an apology usually needs to be part of a larger financial package. What he believes can be prevented are patients seeking huge damages specifically to punish physicians. “When you trust a doctor with your care or the care of a loved one, and something goes wrong, and they shut down conversation, it drives people crazy. And the only way we have to punish them is with money,” he says.
More open communication can lessen the anger. “When doctors talk to patients, we become altruistic,” Wojcieszak says. “We want to know medicine is going to improve. Just the act of hearing someone say sorry, it takes the wind out of your sails. Hearing them say they screwed up is a game-changer.”

Even as some Massachusetts hospitals are working to improve communication in cases of adverse medical outcomes, many doctors in Massachusetts say they need better legal protections if they and their employers are going to adopt a Michigan-like approach. “Every sweet little old lady who walks into my office, I wonder if she’s the one who is out for money,” says Stephen Metz, a Springfield gynecologist who specializes in geriatric patients. Metz is also one of many Massachusetts physicians who says fear of lawsuits has fundamentally changed what it means to practice medicine—and, to his dismay, changed the way he looks at his patients.

“You start backing up, you start saying, this person looks like a problem, so I’ll distance myself,” says Metz, who has been sued five times since 1992. (Two cases were dropped, two were decided in his favor, and one is pending.) “You can’t talk to the patient once they’ve alleged something’s your fault,” he says, adding that his malpractice insurer bars him from talking to patients who have threatened—or even hinted—that they might sue him.

A bill sponsored by state Rep. Sean Curran, now in the Judiciary Committee, would allow doctors to apologize without it being treated as a legal admission of negligence. The bill would also build in a six month cooling-off period similar to Michigan’s. Curran, a Springfield Democrat, says his bill is intended to help hospitals in Massachusetts implement programs to achieve the kind of lawsuit reductions that the University of Michigan’s system has experienced.  

“We’ve got the best doctors in the country and the best lawyers, and there’s a friction between the two,” he says. “I think, in the end, the patient often loses out. We end up paying higher insurance rates and it’s making it more difficult for doctors to practice here.”
Curran believes that by allowing apologies, and requiring the six-month wait, patients can learn the specifics of their care and what might or might not have gone wrong. “A lot of times, if the victim were to hear, ‘I’m sorry,’ and parse out an agreement, this would avoid litigation,” says Curran. An attorney, he says his interest in the topic stems from having a large hospital, Baystate Medical Center, in his district, where, he says, “there’s tremendous fiction bet­ween hospitals and the bar. Doctors are terrified of lawsuits. We need to change that dynamic and let doctors practice medicine.”

Curran’s words speak to another potential benefit of adopting the Michigan approach: a decrease in the use of “defensive medicine,” which the Massachusetts Medical Society defines as “tests, procedures, referrals, hospitalizations, or prescriptions ordered by physicians out of the fear of being sued.” According to a 2008 report by the society, an advocacy group for physicians, defensive medicine adds an annual $1.4 billion to the state’s total health care bill.

Alan Woodward, an emergency room doctor who serves as vice chairman of the medical society’s committee on professional liability, says that, in his 30 years as a physician, medicine has become more test-obsessed because colleagues are so worried about lawsuits. “The mentality in the ER is you’re not going to see this person again. You can’t afford to miss anything,” he says. “I’ve never been sued, but I ran a couple of emergency departments and every time you see a physician sued, not only does that physician get more defensive but everyone does. It’s a shifting standard of care to the most conservative approach.”

While it’s difficult to measure directly whether reducing malpractice costs and opening up conversation—as Michi­gan has done—will reduce defensive medicine, many doctors think it could. “It’s hard for an individual to truly know whether she behaves differently because of fear of liability, but there’s literature suggesting it’s pervasive,” says Erin Tracy, an obstetrician and gynecologist at Massa­chusetts General Hospital in Boston. “We all feel vulnerable.”

Boothman, who designed the University of Michigan’s system, is quick to say that apology-protections and waiting periods alone are unlikely to change doctors’ behavior —either as far as reducing defensive medicine or fostering more open communication. Another key element to his program is harder to replicate statewide or through legislation: The university’s health system is self-insuring, meaning it sets its own malpractice policies. It also promises to protect its health care providers financially, making them more amenable to conversation than a doctor in a small practice might be.

“I have the luxury of telling our staff that we’ll protect them financially,” Boothman says. “You have to protect the people who go into the trenches and do inherently dangerous work with no guarantee. Everything is risky. If a doctor prescribes an antibiotic, they don’t know if you’ll be dead in an hour.”

He speculates that the self-insurance piece is one reason the program hasn’t spread on a grand scale, even in Michi­gan. He knows of one other medical system in Michigan that has adopted a similar program—Allegiance Hospital, in Jackson, Michigan—but says, “In general, there’s a lot of talk and a lot of interest, but not a lot of movement as far as I can see.”

Still, physician advocates like the Massachusetts Medical Society believe if the Bay State puts apology protections and a waiting period in place, hospitals will be more likely to adopt similar reforms.

But there’s opposition to the bill from the Massa­chu­setts legal community. Jeffrey Catalano is a lawyer who represents patients in malpractice cases and serves as vice president of the Massachusetts Bar Association. He notes that the state already has some apology protections in place —typically applied in auto-accident cases, to ensure that a driver who says “sorry” isn’t assumed to be at fault—but says he supports explicitly protecting doctors who want to apologize. Still, he fears language in Curran’s bill may make it harder for patients to make their case and get compensation. “It’s often a case that a patient has no idea what has happened to him or her, for example, if they were under anesthesia,” says Catalano. “It’s very frequent that medical records don’t tell you what happened. The doctor is the sole source of information. If a doctor can tell a patient what happened but not have that used in court, that’s unfair.”
Catalano also cites a report from the Administrative Office of the Trial Court showing the number of malpractice lawsuits in Massachusetts declined by 34 percent bet­ween 2000 and 2008—mirroring both the Univer­sity of Michigan and national trends. But Catalano doesn’t see that statistic as good news; he thinks patients with legitimate claims may not be seeking justice or compensation. “The problem is the obstacles to pursuing a lawsuit, which is largely that there is a lot of hostility toward patients who sue,” says Catalano.

Boothman says that he encountered significant opposition from attorneys in Michigan, but thinks that the years he spent in courtrooms—before working at the hospital—helped ease the tension between the legal and medical worlds in Ann Arbor. “I knew everyone and when I first got here, I told people on the plaintiff side, ‘Call me, we’ll do the right thing,’” he says. In a 2009 article for the Journal of Health & Life Sciences Law, Boothman reports the findings of a survey of local doctors and attorneys suggesting that both sides largely support the new approach. Some 98 percent of the system’s physicians “fully approved” of it, and while there was no identical question included of attorneys, 86 percent of lawyers “agreed that transparency allowed them to make better decisions about the claims they chose to pursue.”

Curran says his bill makes clear the difference between an expression of regret and an admission of wrongdoing. The latter would still be allowed in court. He says he is not optimistic about the bill’s chances this year. “Eventually, you’ll see some form of this bill passed in Massachusetts,” says Curran. “It makes a lot of sense.”