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OCR for page 81
6
Liability: Patient-Centered and
Safely-Focused, Nonjudicial
Compensation
SUMMARY DESCRIPTION
Demonstrations in this category would create injury compensation systems outside of the court-
room that are patient-centered and focused on safety, while also addressing provider concerns about
rapidly rising liability insurance premiums. Specific characteristics of this nonjudicial approach to
malpractice reform are replacing tort liability with alternative systems for ensuring that patients who
have experienced avoidable injuries receive timely, fair compensation from responsible parties; limit-
ing financial exposure for health care providers; promoting apology and non-adversarial discussions
with patients; encouraging provider organizations to report and analyze medical errors; rewarding
prov, iders that put in place effective programs for reducing medical injury; and involving patients in
safety improvement efforts.
Prompt federal action to provide incentives for adopting this approach—coupled with appropriate
state legislation—has the potential to produce immediately measurable benefits in terms of provider
access to affordable, high-dollar liability coverage; gains in administrative efficiency once criteria for
compensation are fully developed, allowing quicker payments to be made to many more injured
patients; and Tonger-term improvements in patient safety and stabilization of insurance markets. The
Department of Health and Human Services (DHHS) would issue a Request for Proposals (RFP) to
the states and select four to five of those that apply for demonstration projects in this category. The
demonstrations would be designed to ascertain a reform's effect on the number and nature of claims
filed and associated total costs, as well as to permit comparison of claim and cost information across
all the demonstrations. All of these components would be part of the overall evaluation of the demon-
strations. If successful, the reforms could continue indefinitely.
11 81
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Liability
The committee suggests that participating
states implement one of two options on a
demonstration basis:
.
Option 1: Provider-Based Early Payment
Under this approach, the federal govern-
ment would provide reinsurance on a
shared-cost basis to self-insured or experi-
ence-rated provider groups that voluntarily
agreed to identify and promptly compensate
patients for avoidable injures. States would
prospectively set limits on non-economic
damages, including pain and suffering, for
identifiable classes of avoidable injuries.
- - 1-~- - - ~
.
· Option 2: Statewide Administrative Resolu-
tion—Under this approach, states would
grant all health care professionals and facili-
ties, however organized, immunity from tort
liability (under most circumstances) in
exchange for mandatory participation in a
state-sponsored, administrative system
established to provide compensation to
patients who have suffered avoidable inju-
ries.
-
.
Both options are compatible with the Admini-
stration's recent proposal related to liability re-
form, which caps noneconomic damages and
supports the concept of "early offers" of com-
pensation (U.S. Department of Health and Hu-
man Services, 2002~. However, both options
also differ in certain respects from the Admini-
stration's proposal and do not depend on its
enactment.
BACKGROUND
For the first time in nearly 20 years, the
United States is facing a broad-based crisis in
the availability and affordability of malpractice
liability insurance for physicians, hospitals, and
other health care providers. The American
health care system has undergone dramatic
changes since the last malpractice crisis two
decades ago (Abraham and Weller, 1994; Sage,
1997~. Reforms to address the current situation
82 t~
should therefore take into account a number of
new concerns and constraints: (~) increased
sensitivity among providers and the public to
substantial rates of medical error and the need to
improve patient safety at a system level;
(2) lower margins and reduced provider capac-
ity resulting from private- and public-sector cost
containment, which increases vulnerability to
"liability shocks"; and (3) organizational and
technical innovations in health care financing
and delivery, including provider integration and
consolidation, that have affected the dynamics
of litigation as well as expanding the range of
public policy responses to a liability insurance
crisis.
There is widespread agreement that the
current system of tort liability is a poor way to
prevent and redress injury resulting from medi-
cal error (Bovbj era et al., 2001~. Most instances
of negligence do not give rise to lawsuits, and
most legal claims do not relate to negligent care
(Localio et al., 1991~. Many injured patients do
not know they have suffered an injury resulting
from error, and those who go through the legal
process often do not even recover the cost of
their continued health care (Sloan et al., 1991~.
A few plaintiffs and their attorneys, however,
win large sums that may be disproportionate to
their injuries or unrelated to the defendant's
conduct. Prolonged, adversarial haggling over
claims by plaintiffs' attorneys and liability in-
surers alienates both providers and patients, and
generates legal fees and administrative expenses
that consume more than half the cost of liability
insurance premiums (Kakalik and Pace, 1986~.
The apparent randomness and delay associ-
ated with this pattern of accountability not only
prevent severely injured patients from receiving
prompt, fair compensation, but destabilize
liability insurance markets and attenuate the
signal that liability is supposed to send health
care providers regarding the need for quality
improvement. Fear and distrust breed inefficient
"defensive medicine," and lead to missed
opportunities for information exchange and
apology that might avoid lawsuits in the first
place. Unfavorable economic conditions and
catastrophic events external to the health care
OCR for page 83
Liability
system add to the effects of legal uncertainty on
liability insurance premiums, particularly for
high-dollar coverage that depends on global
reinsurance markets.
The shortcomings of the current malpractice
system therefore come from three directions, all
of which have contributed to the present crisis:
inefficient and inequitable legal processes for
resolving disputes, problematic responses by
clinicians to the threat and cost of liability, and
volatile markets for liability insurance.
Although some states face greater insurance in-
stability than others as the result of different
legal standards, public expectations, and profes-
sional cultures, no state is immune to the threat
of service interruptions affecting physicians,
hospitals, and other health care providers.
The current liability insurance crisis
provides a compelling case for reform. How-
ever, approaches that focus narrowly on reduc-
ing the number and value of legal claims (e.g.,
limiting damage awards) may lower liability
insurance premiums but do nothing to improve
patient safety or produce prompter and fairer
compensation for patients who are injured. The
systemic problems noted by the Institute of
Medicine (IOM) in To Err Is Human and Cross-
ing the Quality Chasm (Institute of Medicine,
2000, 2001) strongly suggests the need to create
a legal environment that both fosters high-
quality patient care and relieves financial strain
and administrative burden for health care pro-
viders. The committee believes that replacing
tort liability with a system of patient-centered
and safety-focused nonjudicial compensation
linking claims resolution to organization-based
error disclosure and safety improvement proc-
esses—can best accomplish these goals. Such
systems would cap providers' financial expo-
sure at reasonable levels, both directly by limit-
ing damages and indirectly by providing afford-
able umbrella coverage. They would also
encourage and oversee health care organiza-
tions' efforts to identify, compensate, and
reduce errors in cooperation with patients. In
combination, these improvements should
enhance patient safety and enable a greater
number of patients with valid claims to receive
:-
compensation, while simultaneously stabilizing
liability insurance markets by decreasing the
unpredictability associated with high-dolIar,
nuttier cases (Studdert and Brennan, 200 1a;
2001b).
Approaches intended to compensate more
injured patients by using a standard of
"avoidability" rather than the narrower tort stan-
dard of"negligence" raise appropriate concerns
about increased cost. Rigorously testing such
systems on a demonstration basis would allow
policy makers to determine the total cost of
compensating medical injuries outside the
courtroom. Further, by gathering, analyzing,
and comparing claims and cost data across par-
ticipating states, policy makers wouIcl gain
insight into how definitions of avoidable injury
and the generosity of the compensation pack-
ages selected influence total cost. Finally, policy
makers would obtain important information
about the possible dollar benefits of reducing
the incidence of avoidable injuries.
Through the demonstrations in this cate-
gory, states would have the opportunity and
the incentive to select one of the two non-
judicial claims resolution options outlined
above. All participating states will refine the
technical and scientific underpinnings of such a
system through an expert or participatory proc-
ess, depending upon the state's preference.
States would build on well-developed, but
untested proposals such as "ACEs" ("avoidable
classes of events," also called "accelerated com-
pensation events"), early offers of settlement,
and scheduled ranges of allowable damages for
pain and suffering. ACEs identify' in scientifi-
cally rigorous fashion, situations in which inju-
ries that typically are preventable occur, such as
giving a patient two drugs that are known to in-
teract (Tancredi and Bovbjerg, ~ 99 I). Early
offer systems protect defendants from additional
liability if they reliably and promptly acknowI-
edge problems and offer fair compensation
(O'Connell, 1982~. Damage schedules ascertain
reasonable levels of compensation for pain and
suffering on the basis of jury awards for injuries
of defined severity and cap damages at those
83
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~ Liability
-
amounts rather than imposing a one-size-fits-all
limit (Bovbjerg et al., 19894.
States would need to create centralized
mechanisms to ensure the identification, disclo-
sure, and analysis of avoidable injuries, as well
as voluntary, confidential reporting of "near
misses." The way in which such mechanisms
would be operationalized will be left up to the
states, necessitating resolution of important
policy issues. The federal government might
play a role by helping to develop consistent
definitions and data reporting standards, thereby
reducing the need for each state to reinvent the
wheel and allowing for comparisons across
states. States also would help health care
providers communicate more effectively, both
internally and with patients, when errors occur
by encouraging apology and the use of facili-
tated discussion procedures such as mediation
(Cohen, 2000; Sage, 2002~. Finally, states
would engage in sustained efforts to educate the
public with respect to the trade-off involved in
replacing tort liability with administrative reme-
dies for avoidable medical injury: faster, fairer,
surer compensation but forgoing a jury trial.
Some states might choose to phase in non-
judicial~approaches to compensation, beginning
with selected provider organizations (e.g., hos-
pitals, large medical groups, and closed-panel
health maintenance organizations tHMOs]) that
have demonstrated their willingness and ability
to detect, disclose, and prevent medical errors
and have entered into voluntary contractual
agreements with patients that establish the terms
of compensation (Havighurst, ~ 995; O'Connell,
1986; Sage et al., 1994~. Other states might
want to move more quickly by establishing
comprehensive state-wide systems of adminis-
trative claims resolution with mandatory partici-
pation by all health care providers in the state
(e.g., physicians, nurse practitioners, hospitals,
nursing facilities).
The former approach has the advantage of
building on the IOM's earlier recommendations
regarding the optimal structure and conduct of
high-guality health care organizations (Institute
of Medicine, 2000, 2001~. Specifically, this
approach creates incentives for physicians ant!
row
hospitals to join together to form well-managed
clinical entities that bear primary financial
responsibility for avoidable errors and have the
medical know-how to minimize patient injury.
The strength of the latter approach is that it
gives all health care providers equal, immediate
access to relief from the current liability crisis
and does not depend upon particular organiza-
tional forms (e.g., integrated group practice)
that may not be well developed in many juris-
dictions.
The workers' compensation system is the
most familiar example of substituting adminis-
trative claims resolution for tort liability on a
state-wide basis (Fishback and Kantor, 2000;
Kramer and Briffault, 1991~. Experience with
workers' compensation demonstrates that no-
fault systems can enhance predictability and im-
prove access to compensation. It also confirms
the importance of maintaining safety incentives
(e.g., through self-insurance or experience
rating) and establishing reasonable injury
thresholds and clear categories of compensable
injury that reduce waste and discourage fraud.
Nonjudicial approaches to compensating
unexpected medical injuries are the norm in
New Zealand, Sweden, and elsewhere
(Bovbj era and Sloan, 1998; Danzon, 1985,
2000~. Similar programs were debated inten-
sively in Colorado and Utah in the mid-199Os,
but were not adopted (American College of
Physicians, 1995; Petersen, 1995~. The commit-
tee believes the time is now ripe for successful
implementation of such approaches in the
United States because of two contributions by
the emerging science of patient safety. First, hu-
man factors engineers have shown that non-
punitive approaches encourage the detection of
avoidable injuries and foster systems for con-
tinuous improvement, which suggests that
resolving malpractice cases without a deter~i-
nation of fault will help rather than harm quality
(Institute of Medicine, 2000~. Second, as more
health care providers accept their responsibility
to disclose errors to patients, capping liability at
(leaned amounts an essential attribute of any
affordable nonjudicial system will likely
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Liability
result in more rather than fewer patients receiv-
ing compensation.
GOALS
The demonstration projects in this category
would have the following goals:
I. Improve the malpractice system for patients
Make compensation for injury more
predictable, timely, and fair.
Promote honesty, transparency, and
trust in clinician-patient relationships.
Prevent liability concerns from compro-
mising the availability of health care
services for patients.
Put patients and physicians, not lawyers
and courtrooms, at the center of a
reformed system
2. Enhance patient safety
Promote robust reporting of errors in a
safe environment.
- -Promote system-level responsibility for
errors through organization-based
financial incentives for improvement,
such as self-insurance and experience
rating.
errors and related compensation formu-
las.
Analyze and compare data within and
across states.
DEMONSTRATION ATTRIBUTES
Both liability reform options outlined earlier
require the following actions by participating
states, with federal grants for up-front costs and
technical assistance, as well as waiver authority
. ,%
1~ necessary:
.
Involve patients in safety improvement
efforts.
3. Maintain access to liability insurance
Improve predictability of liability costs
Increase affordability of high-dollar
liability coverage.
Decrease the administrative costs of
resolving disputes.
4. Assess cost impact
Generate definitive data regarding error
rates, claims rates, compensation costs,
and administrative costs under various
state systems for identifying avoidable
.
Infrastructure The state would develop
and maintain objective indicators of avoid-
able errors (ACEs), relying on experts, a
broader and more participatory process, or a
combination of the two. The state also
would develop and maintain fa*, consistent
methods (schedules) for calculating
economic harm and reasonable compensa-
tion for pain and suffering. Both the ACEs
and the schedules would need to be updated
on a regular basis, with ACE categories
expanding over time to encompass the large
majority of avoidable injuries. There also
would need to be centralized collection of
data related to the state-level demonstra-
tions. To help states in developing ACEs
and damage schedules, DHHS should pro-
vide support for related grants to the Health
Resources and Services Administration
(HRSA) or the Agency for Health Care
Research and Quality (AHRQ).
Legal environment States would need to
authorize statutory or contractual modifica-
tions of tort liability to reflect the terms of
the option they select, as well as to create
clear, narrow exceptions to the malpractice
reform (e.g., intentional harm). The state
would also need to protect from legal expo-
sure individuals and organizations acting in
good faith to implement the demonstration
approach (e.g., health plans and employers
negotiating group contracts on behalf of
enrollees). And to make the demonstration
affordable, states would need to prevent
OCR for page 86
f Liability
health insurers, disability insurers, and other
parties who pay costs incurred by patients
suffering compensable injuries from suing
health care providers to recover those pay-
ments (i.e., barring subrogation claims).
Finally, states would need to ensure that
apologies and other systematic communica-
tions, such as mediated discussions between . .
providers and patients following the occur- El~g~b~ty
rence of an avoidable injury, do not increase
providers' financial liability or legal expo-
sure.
5
· Patient safety reporting systems States
would establish oversight mechanisms to
verify the detection of injuries and disclo-
sure to patients. The specifics of these
mechanisms would depend on whether the
claims resolution system operates at the
state-wide or institutional level (i.e., upon
the demonstration option selected). These
mechanisms would build upon existing state
reporting requirements. States would also
need to establish mechanisms for collecting
and analyzing patient safety data, including
voluntary, confidential reporting of near
misses. Federal legislation currently under
consideration by Congress would aid this
process if enacted. The collection and
reporting of patient safety information
would need to rely on computer-based
monitoring systems within health care insti-
tutions. With time and experience, these
systems could be linked to decision support
and knowledge management systems that
would help prevent errors from occtuTing in
the first place. Federal technical assistance
would be available for these activities.
Education—The states would be charged
with educating the public about the benefits
and costs of liability reform, which offers
faster, fairer, surer compensation on the one
hand but requires waiving the right to a
court trial on the other. States would also
need to work with the principal stakeholder
groups (e.g., consumer organizations, health
care providers) to build familiarity with and
trust in the public policy goals of the option
selected, and to allay concerns about the
constraints imposed by the demonstration.
Option I: Provider-Based Early
Payments
A variety of health care provider organiza-
tions could participate in such a demonstration,
including hospitals, academic health centers,
large medical groups, closed-panel HMOs, and
skilled nursing facilities. independent physi-
cians might decide to affiliate with provider or-
ganizations (sometimes called"channeling") in
order to participate in a demonstration and re-
ceive liability protection.
Participating Provider Responsibilities
Provider organizations would first need to
self-insure their liability risk, or purchase
experience-rated primary coverage so that the
organization benefits (or not) from how well
they reduce the number of avoidable injuries.
They would also need to inform patients about
their participation in the demonstration, provid-
ing contractual notice of modified liability
(perhaps through payers at the point of health
insurance enrollment) (Moore and Hoff, 1986;
O'Connell and Bryan, 2000-2001~. It is likely
that mandatory patient participation as a condi-
tion of treatment would best serve the goals of
the demonstration for states adopting the
provider-based early payment option. However,
a state might choose, for legal, political, or other
reasons, to allow patients to opt out of the
reformed system at the time of health insurance
enrollment or hospital admission (i.e., pre-
injury), or might modify the early payment sys-
tem in special situations (e.g., emergency care).
Should a specific avoidable event (ACE)
cause injury, providers would need to notify
patients promptly; express regret, and tender
payment for both net economic harm (medical
care, lost wages, lost domestic production, with
collateral source offset) and capped, scheduled
noneconomic harm (pain and suffering). Provid-
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Liability
ers also would be permitted, but not required, to
tender similar payments in other cases of avoid-
able medical injury that do not fit into an ACE
category, thereby gaining immunity from suit.
Because providers would be required to comply
with external oversight and error reporting obli-
gations, states would be able to monitor early
payment practices to determine the circum-
stances under which providers are voluntarily
tendering or not tendering early payment. In
terms of patient safety, providers would need to
offer patients meaningful opportunities to par-
ticipate in efforts designed to reduce error
(e.g., mediated discussions with patient safety
committees regarding their experiences).
Government Responsibilities
The state would protect participating
provider organizations from tort liability in
cases where payment is promptly tendered.
States, either directly or through intermediary
organizations, would ensure that organizations
reliably inform patients in all instances of
avoidable injury. . The federal government
would provide reinsurance or other umbrella
coverage as an incentive for provider organiza-
tions to self-insure and channel coverage for
affiliated physicians, with shared-risk corndors
or similar safeguards against moral hazard. The
federal government should consider whether
additional funds should be made available in the
event that the early payment system is more
expensive than the current system.
In addition to the general support described
above, DHHS might provide technical assis-
tance to states establishing oversight mecha-
nisms for captive insurance companies or risk-
retention groups formed by provider organiza-
lions. Finally, DHHS would create "safe har-
bor" protection under the antikickback statute so
that hospitals and other provider organizations
can offer shared, subsidized liability coverage to
affiliated physicians.
. ~ . ~
Option 2: Statewide Administrative
Resolution
Eligibility
All licensed health care providers
(professional and institutional) within a state (or
large geographic area within a state) would par-
ticipate. States might explore including health
plans and other potentially liable parties as well.
Provider Responsibilities
Providers, along with the state, would notify
patients about the state's modified liability
system and give them related information. No
pre-injury opt-out would be available under this
option. Providers also would need to set up
systems to detect errors and disclose them to
patients and to provide related apologies. For
injuries to patients that fall within the scope of
the demonstration, providers or their liability
carriers would be responsible for paying
amounts determined by the publicly adminis-
tered adjudication system in the manner author-
ized by that system.
. . .. . . . . ~ .. ~
Government Responsibilities
States would need to create a publicly
administered adjudication system, with each
state having latitude to determine how it will do
so. Key elements of such a system include the
following:
.
Compensation criteria based on avoidability
(e.g., expansion over time of established
ACEs categories)
A definition of compensation that combines
net economic harm (medical care, lost
wages, lost domestic production, with col-
lateral source offset) and capped, scheduled
noneconomic harm (pain and suffering)
Injury thresholds (days of hospitalization,
days of disability, total economic loss)
W11
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f Liability
.
An administrative system of adjudication
for determining eligibility and compensa-
tion in individual cases
A consumer and provider appeals mecha-
nism
A multidisciplinary expert panel, including
consumer representatives to oversee the
system
DHHS would provide start-up intending for
the administrative adjudication system, with the
understanding that there will eventually be a
transition to a provider surcharge with federal
matching funds. This might be done using
HRSA or AHRQ grants to states in amounts
sufficient to cover the operating costs of calcu-
lating payments and resolving disputes, as well
as initial expenses associated with defining
compensable events and developing damage
schedules.
As states develop the iniias~ucture needed
for the demonstrations, they would need to work
with stakeholder groups, including consumer
advocacy groups, to anticipate and avoid state
constitutional challenges and other implementa-
tion delays. The states would also need to put in
place a system for funding compensation pay-
ments that maintains financial incentives for
safety improvement within health care organiza-
tions, possibly modeled on workers' compensa-
tion systems that segment employers according
to size and structure into tiers of class-rated
individual risk, commercially insured
(experience-rated) nsk, and self-insured risk.
Pooling of individual risks might best be han-
dled in the long run by a state fund supported by
physician surcharges and administered by
private entities under contact to the state. For
practicality, however, demonstration sites
should encourage liability carriers that currently
insure individual clinicians to accept essentially
all applicants, with discounts for meaningful
patient safety activities.
Finally, the federal government would guar-
antee fiscal neutrality from the state's and its
providers' perspectives to account for the possi-
bility that a comprehensive system that identi-
fies and compensates avoidable injury may be
more expensive than the current patchwork
system of tort litigation. As part of this guaran-
tee, appropriate maintenance-of-effort and other
design safeguards would need to be in place.
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Probl 54 (1-2~: Spring 147-77.
U.S. Department of Health and Human Services.
2002. "Confronting the New Health Care Crisis:
Improving Health Care Quality and Lowering
Costs By Fixing Our Medical Liability System."
Online. Available at http://aspe.hhs.gov/daltcp/
reports/litrefm.pdf [accessed Oct. 1, 20023.
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89
OCR for page 90
Representative terms from entire chapter:
liability insurance
