Victim Compensation Without Litigation - the Lexington Experience Victim Compensation Without...

*Former chief of staff, VA Medical Center, Lexington KY

Victim Compensation Without Litigation - the Lexington Experience.

Steve Kraman, MD*Professor, Pulmonary and Critical Care Medicine and Vice Chairman, Department of Internal MedicineUniversity Of KentuckyKentucky Clinic J-515Lexington, KY 40536sskram01@uky.edu

What do they do?Assess the fault

Assess the financial risk

Fight?

Surrender?

How do hospitals usually respond to financial threats?

How do hospitals usually respond to financial threats?

Patient injured

Does the patient know?

Hospital's fault?

Settle?Settle?

Yes

YesNo

PayFight

Wait for patient to sue

No

Pay

Yes

No

Yes

No

If a Patient or Next-of-Kin Suspects Medical Error and Contacts the Hospital, How Are They Treated?

Usually treated warily, with partial answers, self-serving answers or no answers at all.All contact may be cut off.

This is often required by the hospital’s liability insurer.

The above is often true even if there has been no error or negligence at all!This kind of behavior drives patients to attorneys because it increases suspicion of cover-up and creates anger.

Why do Hospitals Do This?Because of the generally held belief that to do otherwise would threaten the existence of the hospital.Because of the belief that being honest with patients will provide them the ammunition to use in a lawsuit.All the evidence in the medical malpractice literature contradicts the above beliefs.

What Happens if a Hospital Ignores These Fears?

From 1987 to the present, the management of the Lexington KY VA Medical Center practiced a policy of full disclosure including proactive disclosure when patients didn’t even suspect that anything had gone wrong.What happened?

How it StartedI became chief of staff in 1986, the hospital hired an attorney, Ginny Hamm, in 1987.Together with the quality assurance officer, we started a risk management committee in 1987.

Purpose: Damage control.We soon encountered a wrongful death case involving a med error – family did not know and had no way of knowing what happened.The committee decided to “do the right thing.”Disclosure was made with offer of compensation.Settled within several weeks at fair (reasonable) cost.

Since Then…First case seemed successful, felt right.Followed this model since then.Analyzed financial impact and published results (1999)*.Coincided with other articles (e.g. IOM report).JCAHO accreditation standards changes in 2001.Gradually spreading.

*Kraman & Hamm. Risk management: extreme honesty may be the best policy. Ann. Int. Med. 1999;131(12):963-7

How it works . . .Practitioners and others identify potentially compensable incidents.Case and peer reviews determine:

Standard of care violation?Medical error?Patient injured or worse?

Involve practitioners in reviews and discussions.Come to consensus re: need for disclosure.Make open and honest disclosure.Discuss compensation options to make amends.

Disclosure:What Are They Told?

The factsDirectlySympatheticallyCompletelyAccepting full responsibility (apology)Describing what we have done to prevent future incidents.

What Else?Advise them to retain an attorney experienced in malpractice litigation to represent them.Why?

• Reassures patient of fair treatment (Avoids “buyer’s remorse.”)• Reassures the hospital that it can negotiate with someone who

understands damages.

If they don’t want a lawyer, negotiate directly with the patient or family.

Who disclosesChief of Staff (on behalf of the facility) with participation (as appropriate) from:

Facility attorneyNurse reviewerInvolved clinicians Other staff

What about the practitioners?Most are very willing to cooperate. Why?

No blame or punishment (almost never)Many welcome the opportunity to unburden themselves and talk through cases of concern.We involved them in reviews and deliberations. We invited them to participate in the actual disclosure (if we and they were comfortable with that role).We counseled and supported them about potential National Practitioner Databank and other reporting that might result so there were no surprises.

Financial Consequences - 7 Yrs.Lexington VA and 35 other similar VA hospitals.

Total payments (7 years)

Total claims (7 years)

Workload

(Lexington)

Our results over a 13 year periodWe negotiated more than 170 settlements with patientsWe went to trial only three times

Lost one case on the meritsLost one case where we had acknowledged responsibility but could not reach settlementWon one case

Our largest single payment from 1987 to 2003 (my retirement from the VA) was $341,000 in a wrongful death case.Our average settlement was $16,000.

National VA Malpractice Payments (2000)*

The mean malpractice judgment $413,000.The mean settlement pre-trial $98,000

The mean settlement at trial $248,165 Mean time from incident to trial date ~48 months.Recovery Frequency 31%.Lexington mean payment (2000) $36,000

*From office of VA General Counsel

What Happens When the Hospital Has Done no Wrong?

Never cut off communication.

Maintain professional relationship with patient.

Try to correct erroneous impressions of wrongdoing.

Cooperate with patient’s attorney.

Decline (politely and with explanation) any settlement.

VA v. Private Sector2 yr. statute of lim.U.S. Government is defendantJudgeInsurer is U.S.A.No punitive damages (judicial discretion)Reporting to NPDB and licensure boardsEasy to file - no attorney needed

1 or 2 yr. statute of lim.MD/hosp. are defendantsJuryPrivate insurersPunitive damages allowed in most states *Reporting to NPDB and licensure boardsNearly impossible to file without attorney

* Assessed in ~2% of all cases

Other Opinions…

JCAHO

Chapter on Patient Rights and Organization Ethics

Standard RI.1.2.2 (Effective July 1, 2001)

“Patients and, when appropriate, their families are informed about the outcomes of care, including unanticipated outcomes.”

American Society for Healthcare Risk Management (ASHRM)

Perspectives on Disclosure of Unanticipated Outcome Information (April, 2001). “ASHRM believes that patients are entitled

to information about the outcomes of diagnostic tests, medical treatment, and surgical intervention. This perspective is the same whether the results are expected or unanticipated outcomes.”

National Patient Safety FoundationTalking to Patients About Health Care Injury:

Statement of PrincipleWhen a health care injury occurs, the patient and the family or representative are entitled to a prompt explanation of how the injury occurred and its short- and long-term effects. When an error contributed to the injury, the patient and the family or representative should receive a truthful and compassionate explanation about the error and the remedies available to the patient. They should be informed that the factors involved in the injury will be investigated so that steps can be taken to reduce the likelihood of similar injury to other patients….

------------------approved by the National Patient Safety Foundation Board of Directors on November 14, 2000.

"A long habit of not thinking a thing wrong gives it a superficial appearance of being right."

Thomas Paine (1737–1809)