Iowa is the latest state to launch a unique strategy that aims to reduce medical malpractice lawsuits and bolster doctor-patient communication after poor outcomes, while encouraging swift resolution. The Communication and Optimal Resolution (CANDOR) law, which took effect in July, permits privileged discussions between Iowa physicians and patients after medical errors and allows for compensation offers, when appropriate.

After years of failing to enact traditional tort reform, the alternative method is hoped to decrease litigation costs and keep doctors and patients out of a flawed court system, said Dr. Michael McCoy, chair of the Iowa Medical Society Ad Hoc Tort Reform Task Force and a West Burlington obstetrician-gynecologist.

Dr. Michael McCoy, chair of the Iowa Medical Society Ad Hoc Tort Reform Task Force, helped lobby for the state's recently enacted CANDOR law.

“If there’s an untoward outcome, the current system creates isolation,” he said. “The patients get alienated, and the doctors get stressed. That’s the exact opposite of what should happen. You should be able to talk to patients and feel protection. That’s what this law does.”

About 36 states have so-called “apology laws” that prohibit certain statements, expressions, or other evidence from being admissible in a malpractice lawsuit, according to data from Sorry Works!, an advocacy group that tracks apology statutes. Most apology laws cover expressions of empathy or sympathy, while some statutes protect admissions of fault. At least three states – including Iowa – go a step further, laying the foundation for early disclosure of errors, communication between physicians and patients, and negotiation of potential resolutions. Oregon’s Early Discussion and Resolution (EDR) law, which passed in 2013, allows both providers and patients to initiate conversations after adverse events, discuss what happened, and resolve the issue outside of court. Massachusetts’ 2012 disclosure, apology, and offer legislation includes a 182-day waiting period before lawsuits can be filed to allow for the process. Other states, including Washington, Texas, California, and Utah have expressed interest in enacting similar laws.

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Efforts in Iowa, Oregon, and Massachusetts were driven by the successes of similar programs at the University of Illinois Hospital and Health Sciences System, Chicago and at the University of Michigan Health System, Ann Arbor, among others. Since the University of Michigan began its CANDOR program in 2001, average legal expenses per case have been cut in half, according to the UM data. The health system’s presuit claims have gone from 260 annually to about 100 per year. Pilot efforts by the University of Illinois (Chicago) Hospital and Health Sciences System since 2006 have increased adverse event reports from 1,500 per year to 10,000 while decreasing malpractice premiums by $15 million dollars since 2010.

But questions remain as to whether such approaches are successful when implemented on a state level. So far, the majority of data on early discussion, apology, and offer programs have come from closed systems, such as academic medical centers.

“We’re starting to look at how this works in an open system when you try to disseminate it across a state,” said Dr. Alan C. Woodward, chair of the Massachusetts Medical Society Committee on Professional Liability and cofounder of the Massachusetts Alliance for Communication and Resolution following Medical Injury (MACRMI). “If we can show this is an effective model in a statewide distribution, the hope is that multiple other states will follow suit, because this is clearly a better alternative for patients and providers and for patient safety improvement efforts.”

Massachusetts program showing promise

In Massachusetts, the state’s CANDOR law enabled MACRMI to roll out its Communication, Apology, and Resolution (CARe) model at six hospital pilot sites. MACRMI was formed as part of a research initiative led by Beth Israel Deaconess Medical Center, Boston, and the Massachusetts Medical Society, Waltham, and funded by a 2010 grant from the Federal Agency for Health Care Research and Quality.

Under the CARe model, participating health providers communicate with patients and families after an unanticipated adverse outcome, investigate and explain what happened, and where appropriate, apologize and offer fair financial compensation. Data collection in the 3-year study trial closed in December 2015, and the alliance plans to publish its findings in spring 2016. The model has greatly expedited case resolutions, Dr. Woodward said. A case in the CARe program can be resolved in 6 months or less, compared with a lawsuit that can take up to 5 years to resolve. By April 2015, the alliance had screened 856 cases. In three-quarters of cases, the care provided was deemed appropriate, Dr. Woodward said. Of these cases, 615 were closed after full-disclosure meetings with patients. Of the total cases screened, 122 cases were referred to an insurer for resolution, and 93 cases were awaiting further evaluation.

“It’s doing extraordinarily well,” Dr. Woodward said. “We’re resolving cases very efficiently in a short period of time, rather than using litigation.”

Outside the pilot program, health providers in Massachusetts are benefiting from the state’s 182-day waiting period before malpractice lawsuits can be filed, said Elizabeth A. Cushing, vice president of claims for CRICO, a medical liability insurer for the Harvard University medical community. The law allows physicians and insurers the opportunity to review a case and decide whether the complaint requires compensation. In cases that are not considered malpractice, explaining the underlying reasoning to patients or plaintiffs’ attorneys prevents some lawsuits from being filed, she said.

However, Ms. Cushing notes that not every case fits smoothly into the alternative model. Cases in which a poor outcome is immediately known, such as a surgical mishap, lend themselves to quicker investigation, disclosure, and remedy, she said. Claims of misdiagnosed cancer for instance, where the alleged mistake occurred years before, are more challenging.

“A lot of what we are seeing are alleged failures to diagnose things sooner, so it’s 2 years later and someone says, ‘You should have picked up on the fact that I had lung cancer 2 years ago,’ Ms. Cushing said. “Those situations get tricky. What did you know, when? Those cases are not as easily amenable to this process.”

Oregon program gaining speed

Meanwhile, Oregon officials are hoping that more doctors will soon participate in the state’s Early Discussion and Resolution program. In 2014 – its first year in operation – no individual physicians initiated participation in the program. Because EDR is voluntary, both parties must agree to participate for EDR to begin and either party can choose to stop participating at any time.

In 2014, Oregon patients and health providers filed 29 EDR requests to participate in the program, according to data from the Oregon Patient Safety Commission. Patients filed 21 notices and health care professionals filed eight notices. A majority of the eight notices filed by health professionals were issued by hospital representatives. No requests were filed by individual health providers. In 9 of the 21 patient-filed notices, at least one involved health professional accepted the patient’s request to participate in EDR. In the remaining 12 patient-filed notices, the involved health provider(s) declined the request. Data is not yet available on resolution time or case outcomes.

EDR leaders are hopeful that more health professionals and patients will participate in the coming years, said Melissa Parkerton, director of the Early Discussion and Resolution program for the Oregon Patient Safety Commission.

“Widespread adoption of a new approach like EDR requires not just a new process, but a new mindset,” she said. “This kind of cultural shift takes time. In Oregon, our fervent hope is that EDR will be embraced by every health care organization and professional.”

Efforts to raise awareness about the program are ongoing, adds Dr. Robert Dannenhoffer, a Roseburg, Ore., pediatrician and past president of the Oregon Medical Association.

“It’s a little hard to get the word out,” he said in an interview. “Most [doctors] are not going to be dealing with this on a regular basis. It’s a slow uptake. We’re working on better educating physicians.”

A practical model for independent docs?

Questions remain about whether disclosure, apology, and offer models work for independent physicians in small practices.

Dr. Thad L. Anderson, an ob.gyn in private practice in Dubuque, Iowa, strongly supports his state’s law, but he does not foresee the process having much impact on his practice. Larger health systems are generally more situated to utilize the process, he said.

“A hospital system that employees physicians is probably better suited to take advantage of this law,” he said. Independent doctors “don’t have the infrastructure. You don’t have the in-house lawyer. It’s probably a little more problematic for an individual to take advantage of the process compared to a bigger system.”

With this issue in mind, MACRMI in Massachusetts recently added an 800-physician, multispecialty outpatient group to its program analysis. The goal is to evaluate how the process operates within this type of setting and identify challenges and impediments, Dr. Woodward said. In addition, the alliance is encouraging commercial insurers to assist independent physicians in participating in the CARe model.

“The independent or small practice all benefit from the statute we passed – they have the [182-day waiting period] – but if they don’t have an internal risk management structure, than we’ve been working with insurers to set up a support structure,” he said. That way, “when a patient is unhappy with their care, there is a process that can support even a small practice in going through this and working through it with a patient.”

*This story was updated 1/26/2016.

agallegos@frontlinemedcom.com

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Candor laws growing, but are they effective?