Communicating About Errors By Michelle M. Mello, Susan K. Senecal, Yelena Kuznetsov, and Janet S. Cohn 10.1377/hlthaff.2013.0849 HEALTH AFFAIRS 33, NO. 1 (2014): 30–38 ©2014 Project HOPE— The People-to-People Health Foundation, Inc.

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Implementing Hospital-Based Communication-And-Resolution Programs: Lessons Learned In New York City

Michelle M. Mello (mmello@ hsph.harvard.edu) is a professor of law and public health in the Department of Health Policy and Management, Harvard School of Public Health, in Boston, Massachusetts.

ABSTRACT In 2010 five New York City hospitals implemented a communication-and-resolution program (CRP) in general surgery. The program’s goals were to improve reporting of serious adverse events to risk management, support clinical staff in discussing these events with patients, rapidly investigate why injuries occurred, communicate to patients what was discovered, and offer apologies and compensation when the standard of care was not met. We report the hospitals’ experiences with implementing the CRP over a twenty-two-month period. We found that all five hospitals improved disclosure and surveillance of adverse events but were not able to fully implement the program’s compensation component. These experiences suggest that strong support from top leadership at the hospital and insurer levels, and adequate staff resources, are critical for the success of CRPs. Hospitals considering adopting a CRP should ensure that their organizations can tolerate risk, their leaders are willing to reinforce CRP implementation, and resources are in place to educate clinical staff about how the program can benefit them.

Susan K. Senecal is a project director at Health Research Inc., in Albany, New York. Yelena Kuznetsov is a research assistant in the Department of Health Policy and Management, Harvard School of Public Health. Janet S. Cohn is executive director of the New York Stem Cell Science Program/ NYSTEM, New York State Department of Health, in Albany.

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ew York City hospitals confront one of the most volatile and costly liability environments in the country, with operating margins that are among the nation’s lowest.1 They operate without the benefit of malpractice damages caps or other major tort reforms, aside from a birth injury compensation fund established in 2011. In recent years some New York City hospitals have taken drastic steps to reduce liability costs, including closing high-risk clinical services2 or forgoing malpractice insurance altogether.3 In this environment, five New York City hospitals agreed in 2009 to participate in a demonstration project of medical liability reform. The Agency for Healthcare Research and Quality (AHRQ) provided three years of funding for the New York State Department of Health (DOH), Office of Court Administration, and ac30

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ademic researchers to work with these five hospitals and their insurers to design, implement, and evaluate a communication-and-resolution program (CRP) in general surgery. The objective was to determine whether the success enjoyed by early pioneers of the CRP model4 could be replicated in other settings. In addition to the CRP, the project included patient safety interventions and a program in which judges negotiate early settlements of lawsuits. The New York City hospitals’ CRP was inspired by the approach taken over the past decade at the University of Michigan Health System (UMHS), described elsewhere.4–6 The New York CRP followed the core elements of the Michigan model: actively encourage care providers to report adverse events to the hospital and disclose them to families; conduct a timely investigation and explain findings to families; where substandard care caused injury, admit responsibility, apolo-

gize, and proactively offer compensation and other appropriate remedies; and ensure that lessons learned are translated into safety improvements. In a departure from the University of Michigan Health System CRP model, the New York City hospitals decided to limit their program to serious adverse events (defined in the online Appendix)7 in one clinical area with frequent malpractice claims: general surgery. This article reports the hospitals’ experience implementing the CRP over twenty-two months and suggests lessons for others considering similar programs.

Study Data And Methods Setting The five participating hospitals were selected because their leaders vocally participated in efforts to enact tort reforms in New York State. After these efforts failed in 2009, the state’s Department of Health encouraged the hospitals to consider alternatives that required no legislative action. Discussions between DOH officials and administrators and clinicians from these hospitals originally focused on the judgedirected negotiation concept, then later the CRP. One of two liability insurers participated actively in these discussions and eventually agreed to support the project. All five participating hospitals are not-forprofit, nongovernmental, general medical and surgical teaching hospitals with more than 500 beds (Exhibit 1). One hospital is part of a small group of academic medical centers insured by a shared captive (a carrier it controls). The other four hospitals work with a risk management organization that is owned by its client facilities and provides them with risk and claims management services and, through its insurance entity,

liability insurance. Program Implementation In contrast to UMHS, where one hospital employee developed the program,4 decisions about the New York City hospitals’ CRP design were made through a consensus process involving the DOH project managers, hospital quality and risk management administrators, clinical service chiefs, chief medical officers, and representatives from one insurer. The group’s approach is summarized in Exhibit 2. To prepare for implementation, project managers with expertise in gap analysis determined the disparity between the CRP consensus document and the hospitals’ current policies and practices. Risk management leaders created flowcharts showing the current adverse event review system. Training was provided for perioperative staff on how to communicate effectively following adverse events. Each hospital received $43,000 annually toward defraying program costs. Project participants created a CRP process checklist and established a practice requiring that a coordinator be assigned to manage each adverse event. DOH project team members visited each hospital and spoke frequently with participating hospital administrators and clinicians. Biweekly conference calls were held so that DOH officials and hospital risk managers could discuss the project’s ongoing implementation as well as measurement of outcomes. Representatives from each hospital and the insurer participated in a site visit to the University of Michigan Health System. Project organizers also hosted a webinar to help hospitals assess their progress midway through the project. To educate clinicians, project staff prepared a presentation and letter for use by the hospitals explaining the

Exhibit 1 Characteristics Of Five New York City Hospitals Participating In A Communication-And-Resolution Program In General Surgery, 2010 Hospital Characteristic

A

B

C

D

E

Hospital beds

500–999

1,000–1,499

1,000–1,499

500–999

1,500+

Admissions per year Surgical operations per year

50,000–74,999 20,000–29,999

75,000–99,999 20,000–29,999

50,000–74,999 40,000–49,999

25,000–49,999 10,000–19,999

100,000+ 100,000–109,999

Total margin

2.9%

5.2%

10.1%

5.2%

9.1%

Proportion of inpatient days paid by Medicaid

33%

40%

28%

23%

27%

Proportion of general surgeons employed by hospital

63%

86%

49%

77%

—a

SOURCES American Hospital Association Annual Survey 2010; Centers for Medicare and Medicaid Services Hospital Cost Reports; and self-reports by hospitals. NOTES Ranges rather than exact figures are reported so that hospitals are not identifiable. The exhibit reports hospital characteristics at the beginning of the project, with the exception of the proportions of voluntary surgeons (not employed by the hospital), which are current figures. Total margin was calculated from Hospital Cost Reports as (revenues–expenses)/revenues. aNot available.

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Communicating About Errors Exhibit 2 Key Elements Of The Communication-And-Resolution Program In Five New York City Hospitals Element

Description

Eligible adverse events

Adverse events that result in, or may result in, serious harm to the patient while in the care of the perioperative unit. “Serious harm” may be temporary or permanent, but involves (1) death, (2) loss of a body part, (3) disability, (4) loss of bodily function (lasting more than 7 days or still present at the time of discharge), or (5) actual or possible need for major intervention for correction.

Reporting Initial disclosure

Patient’s health care team reports the event to risk management after responding to the patient’s immediate health needs. Surgeon discloses the event to the patient/family as soon as practicable, and ordinarily within twenty-four hours. Disclosure includes the fact that an unexpected event occurred, anything known with a high degree of certainty about what caused it, the possible impact of the event on the patient, an appropriate apology, an assurance that the event will be investigated, additional information communicated as it becomes known, and efforts made to prevent recurrence.

Support services

Risk manager initiates support services to patient/family and providers and offers disclosure coaching as needed.

Investigation

Risk manager coordinates a timely investigation of factors that led to the event, which may involve consultation with internal or external experts and with the insurer.

Resolution decisions

Resolution communication Training

Hospital and insurer determine whether the harm was caused by the patient’s care, whether the standard of care was violated, whether a compensation offer or other remedies are appropriate, what steps should be taken to avoid recurrence, and what should be communicated to the patient/family. Hospital communicates the resolution decisions to the patient/family, including, in all cases, an explanation of why the harm occurred. Families are asked to sign a release of claims in order to accept substantial money offers. In addition to just-in-time disclosure coaching, surgical staff are offered training in disclosure skills and team communication.

Evaluation

Risk managers record data on each case in real time using a custom-built, online platform.

SOURCE Authors’ analysis.

project; these could be customized to suit each hospital’s unique circumstances. Evaluation Methods Our evaluation synthesized data on program implementation from several sources. First, key-informant interviews were conducted at the beginning, middle, and end of the project with individuals whom hospital leaders identified as playing an important role in the CRP. Baseline respondents were reinterviewed unless they held no ongoing substantive role in the program. Interviews were conducted by one to three investigators, lasted thirty to forty-five minutes, and followed a semistructured interview guide. Most interviews were conducted in person. All interviews were recorded, transcribed, and analyzed using standard methods of thematic content analysis. Second, hospital risk managers completed questionnaires at the beginning and end of the project describing the hospital’s adverse event response practices. Third, hospital risk managers entered data on each CRP case into an online database that could also be accessed by project staff at the DOH and Harvard University to monitor and assess adherence to CRP guideline components. Fourth, DOH project managers documented contacts with hospital personnel and meetings of the project staff regarding implementation progress. Study procedures were approved by the Institutional Review Boards of the Harvard School of Public Health and the New York State Department of Health. 32

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Limitations Our study had limitations. Because we were not on site at the hospitals, we did not directly observe the CRP in action. Interview and questionnaire responses may reflect self-serving bias, conscious or unconscious, which we could address only by triangulating information from multiple sources as a check on what informants reported. Finally, we did not sufficiently appreciate the role that the external insurer would play in CRP decision making and did not interview an insurer representative at baseline.

Study Results Key-Informant Characteristics We interviewed twenty-five individuals in thirty-five separate interview sessions. Respondents included risk managers, legal counsel, quality leaders, chiefs of general surgery, and insurer representatives (Exhibit 3). The interview completion rate was 95 percent. CRP Outcomes Over twenty-two months, the CRP was put to use in 125 adverse events. This included twenty-three events outside general surgery, because three hospitals elected to apply the CRP to other clinical areas. An initial disclosure conversation was conducted in 115 cases. The hospital was unable to ascertain whether disclosure occurred in six cases, and disclosure was not possible in four cases (for example, because the patient died with

Exhibit 3 Characteristics Of Key-Informant Interview Respondents, New York City Hospitals’ Communication-And-Resolution Program Number of people interviewed Baseline

Midway

Project end

4 3 3 3 2 0

2 2 2 2 4 1

2 0 3 2 1 0

8 6 1 0

6 0 6 1

3 4 1 0

Site Hospital Hospital Hospital Hospital Hospital Insurer

A B C D E

Respondent type Risk management representatives or hospital counsel Chief medical officers and other patient safety or quality leaders Surgery chiefs or leaders Insurer representatives

SOURCE Authors’ analysis. NOTE Exhibit summarizes thirty-five interview sessions with twenty-five different individuals.

no relatives available). Among these 115 initial conversations, 60 were deemed to also include resolution elements (usually an explanation that the injury was not due to substandard care). One or more additional conversations including resolution elements (explanation, apology, or offers of remedial measures) occurred in seventy cases. In thirty-nine cases, no additional conversations were documented, and in sixteen cases, risk managers were unable to ascertain whether additional conversations occurred. Hospital and insurer staff determined that the standard of care was violated in thirty cases and met in ninety-three cases; they made no determination in two cases. Compensation (beyond waiving medical bills) was deemed appropriate in nine of the cases of substandard care and actually offered in four of those cases, plus two cases of substandard care in which compensation was not initially deemed appropriate. Compensation was offered in another three cases in which the standard of care was met. The leading reason for not finding compensation appropriate where care was substandard was that the hospital believed that communication with the patient, and in some cases an offer to waive medical bills, constituted sufficient resolution. Hospitals’ CRP Implementation Journey Detailed accounts of hospitals’ experiences are provided in the Appendix.7 The gap analysis revealed important differences between the CRP design and hospitals’ existing practices. Of the five hospitals, adverse event reporting rates were perceived as a problem at hospitals B, C, and D; two attributed the underreporting to perceptions that the hospital would respond punitively to increased disclosure. At all except

Hospital D, responsibility for responding to event reports was shared among two or three offices that functioned separately. All risk management offices reported extremely heavy workloads. Relationships between risk management staff and surgeons varied across sites: At Hospital D, for example, there was a strong, trusting relationship, while at Hospital C, surgeons viewed risk managers with suspicion. All but Hospital C had a formal disclosure policy at the beginning of the project, but respondents at all sites were concerned that timely, high-quality disclosures did not always occur. Factors inhibiting disclosure included liability fear among clinicians; surgeons’ culture; lack of disclosure training; and, at some hospitals, mixed messages from top leaders regarding support for disclosure. No hospital consistently communicated investigation results to families unless the family specifically requested it or complained about the care. Instead of offering compensation before families requested it, all sites pursued early settlement by asking questions such as, “Is there something more you’re seeking?” or “How can we help you?” The insurer for Hospitals A, B, C, and D required families interested in compensation to submit a letter of claim and get an attorney before it would discuss settlement. Respondents at Hospitals D and E believed that they did early settlement more than peer institutions, while respondents at Hospitals A and B acknowledged that they rarely made early offers, and those at Hospital C said that it depended on the circumstances. Participants at all hospitals acknowledged that early settlement was limited to cases where it clearly offered the prospect of JANUARY 2014

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Communicating About Errors averting costly litigation. To avoid the risk of a large jury award, they also acknowledged settling some cases where there had been no departure from the standard of care. The CRP received varying levels of leadership support across hospitals. At Hospital D, the CEO, a close-knit senior leadership team, and the chief of general surgery strongly supported it. The support was so strong at Hospital D that the CEO authorized hiring an additional risk manager. At Hospitals A and C, top leaders were perceived as supportive but disengaged; at Hospital E, top leaders conveyed a lack of enthusiasm for the project; and at Hospital B, top leaders ranged from disengaged to openly unsupportive. Despite initial variations in culture, leadership, and resources, implementation successes and shortcomings were broadly consistent across the CRP sites, largely because decision makers developed similar attitudes about settlement. Communication practices were more easily changed in sites where CRPs had leadership support and a strong champion than in sites lacking these pillars. Areas Of Success CRP implementation brought three important improvements to participating hospitals’ responses to adverse events: more-robust disclosure practices, strengthened relationships between clinicians and risk management staff, and improved tracking of reported events. All hospitals noted that the frequency and quality of disclosure conversations had improved because of the CRP. The project reportedly elevated the profile of disclosure in the hospitals, as risk managers leveraged the involvement of AHRQ and the DOH to exhort surgeons to both attend disclosure training and make disclosure routine. Clinicians rated the training positively, and risk managers believed it improved clinicians’ skills. Additionally, the CRP checklist and data collection system provided mechanisms for hospital administrators to ensure that disclosure conversations occurred and ascertain what was communicated. To verify surgeons’ reports of what was said, some risk managers utilized patient relations representatives to observe conversations or debrief with patients, or both. Thus, in addition to providing institutional support for disclosure, the CRP provided for the first time an accountability mechanism to make certain that disclosure conversations occurred. Officials at two participating hospitals emphasized that communications beyond initial disclosure conversations also improved. Officials at Hospital A described this as the biggest change wrought by the project. For the first time, staff at Hospital A invited families back to the hospital 34

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after discharge to discuss investigation findings. Risk managers at Hospital E reported that because they were required to enter data on followup communications in the study database, they started calling patient relations representatives to ask whether they had reached out to the patient after discharge and, if they had not, to ask them to do so. Strengthening Relationships Between Clinicians And Risk Management When the project began, most hospitals’ risk management offices lacked a trusting relationship with surgeons; surgeons rarely called for help with disclosure conversations. The project reportedly began to change the surgical culture of self-reliance in handling adverse events. Surgeons had positive experiences when they consulted risk management staff and came to accept that risk managers were there to support them. Improved Tracking Of Reported Events Respondents uniformly reported that they conducted more robust, systematic tracking of a larger range of reported incidents because of the project. This facilitated identification of more opportunities to rapidly intervene with families (for example, through outreach from patient relations). Two features of the project were credited for fostering this invigorated surveillance, and respondents recommended these to future CRP adopters. First, consulting the implementation checklist helped embed the CRP process into the workflow and helped busy risk managers keep cases moving along. Second, the data collection system, which required entry of detailed data in real time, focused attention on next steps. It prompted regular communication among offices that had previously worked in relative isolation, fostering a team feeling and shared decision making. Risk managers’ close tracking of adverse events had elements of what patient safety theorists call “mindful organizing”8—a set of practices that allows front-line employees to interact continuously with each other and administrators as they develop a shared understanding of safety events. Risk managers devoted ongoing attention to real-time case information, developed a heightened alertness that allowed them to analyze potential problems proactively, and expanded capabilities to recover from unexpected events.8 More broadly, hospitals’ improvements in disclosure, reporting, and follow-up are important elements of “enabling” a climate and culture of patient safety.9 The CRP helped foster an environment in which clinicians felt they could speak openly about adverse events, and it bolstered a shared perception of the value of the safety-

enhancing practices of disclosure and reporting.10

Implementation Challenges And Lessons Learned Although hospitals made important strides in improving communication and surveillance, none implemented the resolution component of the CRP as envisioned. This and several additional challenges impeded progress and provided lessons for other institutions considering the adoption of CRPs. Executing The Vision Of Proactive Settlement Only one in six CRP cases judged to involve a violation of the standard of care resulted in a compensation offer. As before the project, hospitals and insurers rarely offered compensation until families requested it, although they did more often create an opening for families to do so by pointedly inquiring about their needs. Hospitals reported greater proactivity with early settlement, in that they worked harder to resolve cases they perceived to involve significant legal risk. Hospital officials acknowledged, however, that there was little appetite for compensating patients who did not demand compensation or complain about received care. “It’s just not resonating,” said one respondent. Program participants attributed this “hesitancy” to pronounced risk aversion on the part of hospitals, insurers, and physicians. Although one hospital controlled its claims management decisions, the other four deferred to their insurer (notwithstanding that their ownership relationship with the risk management organization gave these hospitals influence over policy and decision making). Hospital personnel expected that the insurer would push back if they sought to offer compensation before the patient requested it, unless the case had a high “public relations” factor. Hospital personnel believed that the insurer was motivated to reach early settlement only in “slam-dunk cases” where there “wasn’t anything to lose.” Hospitals, insurers, and surgeons all reportedly worried that early settlement offers might heighten their liability exposure. Offering modest compensation could be “opening a can of worms,” and anything that might facilitate more lawsuits was viewed as unacceptable in New York State’s “brutal” liability environment. The requirement at four hospitals that patients obtain legal representation in order to discuss settlement was in tension with the CRP. The insurer feared that patients who signed a release of claims without benefit of legal counsel might later have a basis to challenge the settlement in court. Despite the conventional wisdom that

New York City plaintiffs’ attorneys would not take small cases, respondents believed that patients could easily secure representation. They nonetheless noted that at times patients did not press their request for compensation after being asked to retain counsel. The view of those at the participating New York hospitals of what “early resolution” meant thus differed from the UMHS model that inspired the CRP design.5 The UMHS philosophy—that the hospital will consistently stand behind care that is reasonable and consistently offer redress when it is not—reflects three beliefs. First, compensating patients when error causes serious harm is the right thing to do. Second, proactive compensation reduces total liability costs.6 Third, demonstrating consistency in adverse event policy cultivates clinicians’ confidence in the program and the institution. The New York hospitals never fully embraced such a principled approach. Initially drawn to the project by the judge-directed negotiation program, the New York hospitals approached the CRP with caution. However, even with its limited implementation, the CRP was a marked movement away from the deny-and-defend posture that many malpractice defendants have traditionally assumed. Project hospitals more often admitted error, probed the family’s interest in compensation, and encouraged interested families to submit a claim. ‘Every Case Is Individual’ In discussing why settlement offers were not always extended when the standard of care was violated, respondents repeatedly expressed the view that one cannot apply a strict protocol to risk management—“every case is individual.” Levels of certainty about whether the standard of care was violated varied from case to case, creating “gray” cases for which the appropriateness of compensation was unclear. Some patients did not seem to want compensation, and hospitals were “not going to chase after” them. Finally, according to the views expressed by participating hospital personnel, it was sometimes necessary to settle cases where the care had been reasonable because the risk of having the case going to trial was too great. In offering advice for other institutions, respondents urged hospital administrators to recognize that even when vigorously pursued, early resolution will not succeed every time. Some patients will not engage, and some will disengage without explanation and sue. “It doesn’t mean you shouldn’t try,” respondents advised, but it is naïve to expect “consistently positive results across the board.” Winning Over Physicians Hospital participants reported varied experiences persuading surgeons of the value of the CRP, depending JANUARY 2014

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Communicating About Errors on each institution’s existing culture of transparency regarding adverse events. Hospital B respondents reported that surgeons were very receptive and “hungry for something like this.” Hospital D respondents reported that the only hurdle to acceptance was that surgeons were busy and not focused on “touchy-feely” processes like disclosure. At Hospital A, notwithstanding that surgeons reportedly “try to be accommodating,” respondents reported that the surgical chief was “met with some blank stares” when he explained the program. Surgeons particularly resisted the idea that “known complications” of procedures should be reported as adverse events. Risk managers labored to explain that despite informed consent, the complications that surgeons expected may be unexpected from the patient’s perspective. The CRP presented an opportunity to intervene early and prevent the lawsuits that often followed adverse events. Only some surgeons came to accept this view. Finally, respondents at Hospitals A and C reported lingering suspicion among many surgeons that compensation offers might prompt more lawsuits. Hospitals with a high proportion of “voluntary” surgeons (not employed by the hospital) faced special challenges. Compared to surgeons who were hospital employees, voluntary physicians were harder to attract to CRP training sessions and less available to talk with risk managers and families. Respondents also believed the hospital had less ability to direct the behavior of voluntary surgeons and acculturate them to the norms that the CRP was meant to inculcate. Further, voluntary physicians were often insured separately, creating added complexities in negotiating settlements. Respondents advised other institutions to create a plan for getting clinical staff on board from the beginning. At most of the participating hospitals, awareness of the CRP among surgeons was low, and respondents expressed regret that more had not been done to effectively include them early on. Respondents emphasized that outreach should come from leaders whom physicians respect—especially division chiefs and the chief medical officer. Some also suggested that the insurer be involved. Outreach to clinical staff should characterize the CRP as an expression of the hospital’s commitment to supporting caregivers and their patients following adverse events. Respondents perceived that sharing success stories and data showing improvement in key outcomes, including patient and provider experience and liability costs, was very useful in winning over physicians. Limited Resources And Heavy Workload Risk management offices varied in size across 36

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Respondents strongly advised new adopters of CRPs to ensure that top leaders at the hospital and the insurer champion the program.

the participating hospitals, but even the largest one struggled with workload. Tasked with managing a large portfolio of responsibilities and constantly “putting out fires,” risk managers had difficulty shouldering the new work involved in the CRP, which was “a full-time responsibility.” In addition to expanded recordkeeping and surveillance, CRP work included increased outreach to clinical staff, families, patient relations, and quality administrators. Increased coordination with the insurer was also required to collect information and discuss strategy. Scheduling meetings with these busy people was often laborious. Although hospitals officials embarked on the project believing that the CRP reflected what they were already doing, at the project’s end, participants described the CRP as a “very labor intensive” process that involved additional communication and follow-up. Only two hospitals hired an additional risk manager, and all participants stressed that the grant funds were insufficient to cover time spent on the CRP. In advising others about starting CRPs, many respondents recommended appointing a dedicated “CRP coordinator” with a clinical and risk management background to give clinicians a clear point person, ensure adequate staffing, and avoid the tension that often arose when someone with “Risk Management” on his or her nametag attended family meetings. Respondents also recommended an expanded role for patient relations representatives as CRP liaisons. Finally, respondents cautioned that financially stressed hospitals should ensure that they can fully commit to the CRP. “It’s very difficult to innovate when you’re in survival mode,” one leader commented. Financially stressed hospitals may have lower risk tolerance and consequently shy away from devoting resources to a program whose return on investment could take years.

Variable Levels Of Leadership Support Risk managers experienced markedly different levels of support from their hospitals’ CEOs, chief medical officers, and general surgery chiefs, making culture change a daunting challenge for some. Where top leaders’ enthusiasm for the CRP was strong, risk managers felt well supported. Further, they noted that the surgery chief’s buy-in was instrumental in building support among clinicians. Where top leaders were supportive in principle but disengaged in practice and not “a face in the process,” even strongly committed risk management and quality staff had difficulty building buy-in for the initiative, especially among surgeons.Where senior leaders were openly unsupportive, risk managers still worked energetically to implement the program but faced an uphill battle. The involvement of the state Department of Health in the project complicated matters, reinforcing the impression that the CRP was something imposed from outside— importantly, by the same agency that monitors medical professional conduct. The DOH’s offers of assistance were “like hearing from the IRS, ‘We’re here to help you,’” one respondent quipped. Respondents strongly advised new adopters of CRPs to ensure that top leaders at the hospital and the insurer champion the program and be directly engaged with its work. Their visible involvement conveys that the CRP is what the institution believes in, persuades clinicians that there is something in it for them, and communicates to those who are skittish about disclosure and early settlement: “This is the way it is. You need to be on board with it or go somewhere else.”

Discussion The communication-and-resolution programs in this project primarily served to ensure that information about unexpected care outcomes was shared with patients. CRPs helped hospitals foster a stronger culture of disclosure and safety but did not change existing practices concerning compensation, except by strengthening and expediting efforts to settle “slam-dunk cases” involving clear error, serious harm, and a complaining patient or family. Compared to institutions that pioneered early-settlement programs, such as UMHS,4 the hospitals involved in this project were less proactive and consistent in offering compensation, and more rigid about requiring patients to find legal representation and put their demands in writing. Explaining The Different Levels of Success Why did these hospitals struggle more than early adopters of early-settlement model CRPs?4

These hospitals encountered organizational circumstances that are identified in program innovation and implementation literature as associated with incomplete fidelity in implementing innovations as envisioned,11 and early adopters did not confront these to the same extent. Although some risk management and quality staff at the New York City hospitals vigorously championed the CRP, most top leaders were disengaged or openly skeptical. In contrast, pioneering institutions had a powerful champion who operated with the support of top clinical and administrative leaders.4 Another key distinction was resources. The New York City hospitals faced low margins and thin staffing. Risk management and quality personnel felt constantly overwhelmed and “in survival mode.” Institutions that pioneered earlysettlement programs, all well-resourced academic medical centers, expressed no such concerns. The “outer context”11 was also important. At some New York City hospitals, the CRP was perceived as an imposition by outsiders, not a homegrown response to a felt need. The volatile liability environment further chilled interest in risk taking, and key informants frequently cited perceived differences between the litigation climates in New York and Michigan as a reason for the more limited success of the initiative in New York. “New York is very, very difficult,” one respondent remarked; the environment undermined physicians’, hospitals’, and insurers’ confidence in trying something new. Moving Toward Nationwide Dissemination AHRQ has signaled interest in moving toward nationwide dissemination of the CRP approach.12 Experiences in New York City suggest several specific supports that could facilitate expanding the use of CRPs. First, guidance is needed to optimize processes of communication with patients. Some project hospitals relied exclusively on physicians, others involved risk managers early on, and still others utilized patient relations staff. Some respondents argued that making the CRP a physicianled process would build on established, trusting relationships and avoid “lawyerizing” conversations. However, that approach requires physicians’ buy-in and makes it difficult to ensure that disclosures provide meaningful information. Although it is desirable in principle to tailor CRPs to local culture, we suggest three guidelines. First, the treating physician should ordinarily participate in the initial disclosure conversations, ideally with another hospital employee present. A hospital representative, not the physician, should follow up regarding compensation and other remedial gestures.13 In fact, the best liaison with the patient may be a “CRP coJ A N U A RY 2 0 1 4

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Communicating About Errors ordinator” or patient relations representative rather than a lawyer or risk manager. Second, organizations need resources to educate clinical staff about the CRP. Particularly for large organizations and those with many voluntary physicians, reaching staff for disclosure training and CRP education is challenging. Many organizations will be unable to make a large investment in this area, but AHRQ’s new initiative to develop training and implementation materials12 should help fill this gap. Third, the problem of legal representation for patients must be explored. Many insurers will, with good reason, be uncomfortable negotiating settlement agreements with unrepresented patients. Yet plaintiffs’ attorneys who are not fully versed in the CRP’s theory and value may be distrustful and uncooperative. Additionally, it is questionable whether patients should have to pay a substantial portion of their settlement as a contingency fee when a settlement offer is already on the table, since less work is required of the attorney. Furthermore, patients generally encounter difficulty finding attorneys willing to take small cases. New models of patient representation—for example, a roster of reputable attorneys willing to charge an hourly fee—are This project was supported by Grant No. R18HS019505 from the Agency for Healthcare Research and Quality (AHRQ). The content is solely the responsibility of the authors and does not necessarily represent the official views of AHRQ or the New York State

needed. Finally, hospital collaboratives are an appealing model for disseminating CRPs. Project hospitals commented that implementing CRPs as a group could provide a source of moral support, emboldening organizations and helping overcome their reluctance to “put ourselves out there” and “blaze the trail.” Collaboratives also accelerate the accumulation of data on program outcomes in order to promote understanding of how the CRP is working. Hospital Engagement Networks and other existing collaboratives could serve as springboards for broad implementation.

Conclusion The hospitals in our project achieved important changes with slim resources in a difficult environment. Although they encountered many impediments to executing proactive early settlement, at the end of the project nearly all participants endorsed the view that it remained a worthy vision to pursue over time. Their experiences shed light on the challenges that new adopters may encounter as CRPs move toward national dissemination. ▪

Department of Health. The authors acknowledge with gratitude the dedicated efforts of the participating hospitals and insurers to implement the program and provide data for the evaluation. They also thank Serena Sturman, Fatma Baykal, Rick Boothman,

Mary Hunger, Jennifer Guiliano, and Aurora DeMattia for their contributions to project implementation and support, and Tom Gallagher, Allen Kachalia, and Sara Singer for comments on an earlier draft.

NOTES 1 Excellus. The facts about New York State medical malpractice coverage premiums [Internet]. Rochester (NY): Excellus; 2013 [cited 2013 Dec 10]. Available from: https:// www.excellusbcbs.com/wps/wcm/ connect/b7cdbf66-dd6b-4fb0-961247112e93c9f7/Med+Malpractice+FS +2013-EX+FINAL.pdf?MOD= AJPERES&CACHEID=b7cdbf66dd6b-4fb0-9612-47112e93c9f7 2 Solomont EB. Hospital obstetrics ward will close amidst malpractice crisis. New York Sun. 2008 Jul 31. 3 Hartocollis A. Troubled New York hospitals forgo coverage for malpractice. New York Times. 2012 Jul 15. 4 Mello MM, Boothman RC, McDonald T, Driver J, Lembitz A, Bouwmeester D, et al. Communication-and-resolution programs: the challenges and lessons learned from six early adopters. Health Aff (Millwood). 2014;33

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