The Dao of Disclosure

What would cure the malpractice crisis? Health courts, superfunds, damages caps? What about simple honesty?

Medical malpractice litigation is a major source of angst, expense, and inefficiency in health care. An article in a recent edition of Milbank Quarterly examined the barriers to implementation of “Disclosure, Apology, and Offer” (DA&O) programs by a wide variety of health care stakeholders.

DA&O programs aim to increase transparency, proactively improve patient safety, and reduce medical malpractice litigation.  The key components of the DA&O model are (1) a commitment to full disclosure of “unanticipated [adverse] clinical outcomes,” (2) an apology for outcomes caused by medical negligence, and (3) an expedient offer of fair compensation for injury.

In July 2010, the Agency for Healthcare Research and Quality (AHRQ) awarded $23 million to stimulate innovative programs which would reduce medical malpractice litigation and improve patient safety.  Under an AHRQ planning grant for expanding DA&Os, the authors interviewed 27 key informants in leadership positions at Massachusetts healthcare organizations.

The most appealing aspects of the DA&O model cited by greater than 70% of respondents were: (1) the positive ethical and professional considerations (89%) and (2) the reduced legal risk and costs (74%).

The most significant barriers of DA&O implementation cited by greater than 70% of respondents were (1) institutional protection under the charitable immunity clause, (2) physician discomfort with disclosure, (3) the legal profession’s interest in maintaining the status quo, (4) coordination across insurers, and (5) reporting of individual physician names to the National Practitioner Databank for systems-based failures of care.

Commentary

DA&O programs are an attractive solution for reducing the costs of medical errors and calls for enhancing accountability.  If successfully implemented, these programs offer the promise of providing patients with answers and fair compensation after medical errors while protecting physicians and medical centers from “run-away juries.”  However, the study identifies numerous perceived obstacles.

Overcoming these obstacles would require significant buy-in from a wide variety of stakeholders – government, the medical profession, and the legal profession.  Further, in the case of the legal profession, neither the plaintiff’s bar nor the defense bar has any economic interest in successful DA&O programs.  In fact, wide success of the DA&O model runs the risk of putting these stakeholders out of business.

Interestingly, after stakeholder interviews, no rival alternatives were offered to the DA&O model.  This may suggest that the net was not cast wide enough or that experts consider other commonly offered alternatives – such as or a – to be unrealistic.

Bell SK, et al.  Milbank Quarterly.2012; 90 (4): 682-705.

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Andrew Gonzalez, MD, JD, MPH