A New Focus — and Journal — at the Intersection of Patient Safety, Legal and Risk

In 2009, Erlanger Health System in Chattanooga, Tenn. upended the classic "deny and defend" approach to fighting malpractice lawsuits and instituted a communication-and-resolution program. In this system, when the hospital determines that it made an error, it apologizes to the patient or family members and commits to changes to reduce the chances of similar events occurring. If compensation is sought, the sides then seek to agree on an amount.

The results were remarkable: In the program's first seven years, the number of new claims filed per 1,000 hospital admissions dropped by about two-thirds, and total liability costs were reduced by more than 40 percent. The average time to resolve a case decreased from 17 months to 8 months, decreasing the stress and anxiety of patients, families and clinicians alike. While other hospitals have seem similar results from communication-and-resolution programs, this is the first paper to highlight its use in an "open" hospital, in which physicians are not hospital employees.

The findings are detailed in the inaugural issue of the Journal of Patient Safety and Risk Management, edited by Albert Wu, Armstrong Institute core faculty member, physician and professor of health policy and management at Johns Hopkins.

The journal is the fourth, by Wu's count, to concentrate on patient safety issues, and it will publish many articles focused squarely on the science of preventing patient harm. But he says the journal will also occupy a special niche, looking closely at complex issues surrounding how safety, risk management and legal concerns overlap, where they are complementary and where they conflict.

This has long been an area of concern for Wu, who has studied and written about the fallout from medical errors and other stressful patient-related events. As far back as 1991, he reported on what medical residents did after medical errors — who they talked to and how they coped. In a 2000 editorial, he coined the term "second victim" to describe health care professionals who were traumatized by medical errors and unsupported by their organizations. At Hopkins, he went on to help create a peer support program that helps these workers. Wu has also developed training programs on delivering effective apologies after adverse events, seeking to heal patients and providers alike.

We caught up with Wu to discuss these issues and what he hopes to explore in the new journal. The first issue can be read without a subscription.

Why the focus on patient safety, risk and legal issues?

Concerns about liability and malpractice issues are always on people's minds, but there is relatively little evidence for what one should do. What is the best way to disclose an adverse event? Is there a better way to make an apology? If there was preventable harm, should you always offer compensation? More research is needed on how different approaches to handling medical errors affect legal outcomes and quality of care. How can patient safety and risk management departments work together to improve both safety and legal outcomes? How can patients be compensated fairly without blaming individual health care workers who work in flawed systems? There's just not that much data out there. We need to understand what happens at the interface of safety, quality and medico-legal issues.

Do safety and malpractice law complement one another?

Sometimes they do, but often they don't. As I wrote in my inaugural editorial, malpractice cases often scrutinize individual clinicians while giving less weight to the system flaws that may have set them up for mistakes. Patient safety efforts typically focus on system changes.

Also, while we might expect that the biggest payouts might go to patients whose injuries resulted from the most egregious negligence, that's not always the case. One classic study found that fewer than one in five claims involved a negligent injury, and just one in 50 negligent injuries resulted in claims. The biggest predictor of payouts was the degree of disability from the injury. This disconnect prevents patient safety and legal teams from aligning their work to the goal of improving care.

Are there ways to bring them into greater alignment?

Communication and resolution programs hold some promise. In the Erlanger Health System study that we published, for example, just one of the payouts over seven years was made to a patient whose injury did not result from negligence, and it was for a small amount. When patient safety and legal concerns more closely mirror one another, payouts seem less random and less like a "lawsuit lottery."

What are some of the big questions that need to be explored?

Despite some hospitals embracing more forward-thinking approaches that encourage prompt apologies, there's a long-running battle between the culture of openness and safety versus a self-protective approach. There's also still a fair bit of hangover from the era of "shame and blame," when we closed ranks and didn't speak a word of our mistakes.

I would like to see that go away, but writing that into policy and making it happen in practice isn't so easy. Hopefully this journal can be a magnet for promising innovations in approaches to settlements, mediation and legislation about how these adverse events ought to be handled. One example is communication-and-resolution programs like that put forward in the Agency for Healthcare Research and Quality's CANDOR (Communication AND Optimal Resolution) implementation toolkit. We will actually be publishing a paper on this in issue number 2 of the journal later this year. Another example is a more patient-focused approach to remediation. It will also be interesting to see the impact of legislation, such as the United Kingdom's Duty of Candour, which requires health care professionals to be honest and open with patients when things go wrong. We'll be pulling in perspectives and ideas from across the world, such as the World Health Organization's patient safety program, Action against Medical Accidents and the National Health Service Litigation Authority in the United Kingdom.

We hope that the journal will provide a unique forum for papers related to medico-legal issues. However, we will also be publishing great papers on straight up patient safety. The journal will feature original research, reviews, commentary and cases on innovative ideas, practices, strategies and policies for decreasing risk and improving safety in health care.