Case Study

Health Reformers' Nod to Malpractice Reform

Nearly 4 years after it was signed into law, the Affordable Care Act (ACA) has lost none of its ability to split the room, leaving proponents and detractors glaring at each other and promising to take their case to the public during 2014's midterm elections.

But little of that debate is likely to center on medical malpractice reform, and for a good reason: Despite its other controversial provisions, the ACA largely sidestepped the question of such reform. Instead, it contains 2 relatively modest liability-related provisions, including the allocation of $25 million to support state-based malpractice and patient safety demonstrations. (The second provision extends federal malpractice protections to free clinics' nonmedical personnel.)

This $25 million initiative -- administered by the Agency for Healthcare Research and Quality -- has now yielded a variety of findings, which have been set out in a group of papers included in the January issue of the journal Health Affairs.

In his introduction to the issue, Editor-in-Chief John K. Iglehart[4] identifies the common theme of the 5 liability-related articles. "Overall, the papers accentuate a movement that has been gathering momentum for a decade: the placement of a greater emphasis on patient safety, and open communication about medical errors and near misses, and fair compensation when patients are injured, rather than continued reliance on lengthy and bitter court battles."

The lead article, for example, examines ways to encourage and support the implementation of what are known as "communication-and-resolution programs" (CRPs).[5] For hospitals and other healthcare organizations adopting the CRP model, the focus is 3-fold: identify medical injuries promptly; disclose them to patients compassionately; and resolve them quickly and fairly through patient engagement, explanation, and, where appropriate, apology and compensation.

Although none of these steps necessarily involves changing existing laws, researchers say, policy-makers can nevertheless ease the transition to CRP though several simple measures. One of these is addressing "the reputational and economic concerns of healthcare providers" who acknowledge their error and offer an apology. Among other concrete proposals, the authors suggest "clarifying practices governing National Practitioner Data Bank reporting."

Further articles dig deeper into the weeds of CRP and other programs. In one study, for instance, researchers examined Ascension Health's implementation of a "full-disclosure protocol" -- a policy of open communication with patients and families about unexpected medical events -- at 5 labor-and-delivery demonstration sites.[6] After careful training and buy-in from a variety of stakeholders -- including doctors, hospitals, and liability insurers -- "the rate of full disclosure had increased by 221 percent" after 27 months, researchers said.

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