​ Cover story two

Adverse medical outcomes

Creating a principled response

By Marissa K. Linden, JD, and Ruth E. Flynn, JD

cademic medical centers—along with private health care practices—require a comprehensive strategy to deal with potential adverse medical outcomes, one that is tailored to meet their unique needs and cultures. Some large institutions rely on comprehensive legal advice to develop and implement these strategies, but small practices could also benefit from the lessons learned from academia and the law firms that represent them—and should consider the principles detailed in this article.

University of Minnesota Physicians (M Physicians) could provide a roadmap. No longer c ontent with the status quo, the academic physician practice—which, in addition to providing direct patient care, trains medical students, residents, fellows, and graduate students, and pursues new cures and treatments—is embracing a cultural shift in the way it identifies and handles adverse medical events through its communication and resolution program. Their Principled Response Model to Adverse Clinical Outcomes is built on a foundation of transparent communication and proactive response to these events, an approach that seeks to benefit all parties: patients, physicians, and medical staff.

Through adoption and implementation of this principled response model, they believe they will continue to lead the industry in patient care, experience, and outcomes—consistent with the University’s land-grant research and education missions.

​Adverse medical outcomes are rarely simple black and white issues.

A proactive approach

While this risk management approach has evolved over time, the response model continues to stress proactive action. Once an adverse medical event or unexpected outcome is identified, the goal is to not wait for a patient to complain or for a lawyer to call. Instead, they encourage physicians to report unplanned clinical outcomes as soon as possible, investigate and assess the situation, and strive to proactively and candidly communicate with the patient regarding the event or outcome. If the collective assessment reveals that its medical team provided appropriate care, this conclusion will be promptly communicated to the patient and the care, if necessary, will be vigorously defended. However, if the medical care provided to a patient fell below its standards, the institution will, where appropriate, seek to provide an explanation, an apology, or an offer of fair compensation.

Each step of the response model process strives for open and candid conversations with patients and, if appropriate, the patient’s family. Communication is key, and these conversations are intended to:

• provide a comfortable and non-adversarial forum in which the care can be openly discussed;
• keep the patient advised of the progress of an investigation;
• assist in managing the parties’ expectations;
• promote accountability for all parties; and
• strengthen the physician-patient relationship

The success of the response model rests on a foundation of honesty and transparency with the patient, which begins with candid, ongoing discussions in the service of the patient-physician relationship, especially when the clinical outcome resulted from an avoidable medical error. At its heart, this model represents a tangible commitment to the clinical mission and many of the reasons physicians entered the field. Over the past several years, Ruth Flynn, JD, associate general counsel and vice president for enterprise risk management, and her team have successfully utilized this model selectively. They are now moving toward consistent and systematic application of these principles for all future unplanned clinical outcomes. When faced with an adverse event, the risk management team will guide providers to respond in a way that honors a trusting patient relationship—a strategy that’s been proven to avoid needless litigation and strengthen trust.

​

Lessons from Michigan

With an understanding that the traditional “deny and defend” approach often helps few and leaves plenty of wreckage in its wake while impeding clinical improvement, Flynn’s team believes this response model is truly about achieving better outcomes for all stakeholders, and could produce similar results for all systems. The evidence bears that out.

The University of Michigan Health System in Ann Arbor has shown promising results since implementing its own early disclosure and offer program 20 years ago. Michigan’s program has resulted in fewer claims, fewer lawsuits, and lower liability costs. Ten years after implementing its program, Michigan found that the rate of new claims had decreased from approximately seven per 100,000 patients to fewer than five. And, the rate of lawsuits had also declined—from 2.13 suits per 100,000 patients per month to approximately 0.75.

Not surprisingly, Michigan has also reported anecdotal evidence suggesting that its program significantly accelerated clinical improvements while helping to maintain the patient-physician relationship—even when patients have been harmed by a medical error. Michigan also notes that its program has had a positive effect on the morale of health care professionals whose voices are heard throughout the process and the need to resort to the adversarial process diminishes.

And, hopefully, these outcomes will also motivate other health systems to apply this or a similar model. The benefits should be a signal to other health systems to join the movement: greater patient satisfaction, better care from medical professionals, and enhanced trust in the medical system.

​The response model requires transparency and honesty about all outcomes—good and bad.

A principled approach

Make no mistake: The response model is not a “roll over.” Quite the contrary, it is a highly principled approach, one that promises to quickly support caregivers when their care was reasonable under the circumstances, while building a sense of clinical accountability when outcomes resulted from unreasonable medical mistakes.

Physicians, residents, and medical staff can remain confident that when they provide good care, management will go to bat for them. This is because the response model requires transparency and honesty about all outcomes—good and bad. When the standard of care is met, M Physicians will defend the care. When compensation is warranted, the academic physician practice will move quickly to fairly resolve the potential claim without the need for litigation, while accelerating clinical improvements to protect future patients.

Outside legal support

One way this is accomplished is by retaining attorneys who not only specialize in medical malpractice, but who understand a devotion to the response model. The law firm of Gislason & Hunter, LLP, has partnered with M Physicians in the growth and implementation of the response model. The law firm has a dedicated Medical Malpractice Group with an extensive history of successful defense representation in various forms of professional malpractice actions in Minnesota, Iowa, and Wisconsin, along with a commitment to pursue early, thorough, and candid evaluations of adverse medical outcomes. Indeed, all health systems, big and small, academic or non-academic, could benefit from engaging legal counsel to employ the response model with specialized knowledge, understanding, and compassion.

This approach benefits everyone. Physicians can feel secure that the practice will defend good medicine, and patients can feel secure that they will receive open, honest communication at all stages of their care. If there is an adverse event, proactive steps will be taken that continually advance clinical improvements.

​

Leadership

Underscoring its commitment and dedication to the response model, M Physicians recently created a new leadership role to serve as a driving force behind the program. Barbara Gold, MD, an anesthesiologist by training, was named chief clinical risk management officer. In her position, Dr. Gold bridges the gap between these two organizations, permitting greater collaboration and goal alignment. Dr. Gold will be responsible for building the training and peer support structures necessary for the response model to thrive now and into the future and for systematizing the response model into the cultures of the practice and the Medical School.

“As a practice, we have had a transparent, proactive mindset toward addressing adverse events for some time. Now, we are putting the structures and training in place to systematize the process to better support providers and leverage this for the benefit of the larger clinical mission,” said Dr. Gold.

By implementing the response model and its underlying philosophy directly into the curriculum, they have the ability to introduce this risk management approach to the next generation of physicians. By so doing, the academic physician practice is shepherding a shift in organizational and professional culture that will benefit physicians and patients not only now, but also in the years to come.

“This model will create a very supportive learning environment for our residents and fellows,” said Susan G. Kratz, academic health center counsel. “The earlier physicians can learn how to have these conversations, the better prepared they will be when they begin their practice.”

Applying the lessons

But this model should not be limited to academic health care facilities. All medical facilities could benefit from a proactive and transparent approach to adverse medical events, which in turn benefits the whole medical community as trust continues to grow. There is no doubt that change can be hard and is often met with resistance, and adverse medical outcomes are rarely simple black and white issues.

“Our response to adverse events needs to be congruent with our mission as physicians—showing compassion and aspiring to heal,” said Dr. Gold. “It will be a challenge, but our honest and collaborative approach will ultimately lead to better outcomes for our patients and providers.”

Marissa K. Linden, JD, is an attorney with the law firm of Gislason & Hunter, LLP. As a member of the firm’s Medical Malpractice Group, Marissa focuses much of her legal expertise on medical malpractice defense, representing health care providers including hospitals, clinics, nursing homes, and medical professionals.

Ruth E. Flynn, JD, is Associate General Counsel and Vice President of Enterprise Risk Management for M Physicians, where she concentrates her practice on inhouse medical malpractice defense.