It’s time for some frank talk about how hospitals and health systems respond when patients are harmed. For 40 years, I've had a firsthand view of patient harm, and it's clear that the traditional response is not working. Like Will Rogers famously said, "When you find yourself at the bottom of a hole, the first thing to do is stop digging." There is another option—and it's a better one.
In my previous article, I shared two stories from early in my legal career. They involved birth-trauma cases, where I was brought in after the fact (in one case, 10 years after the fact). The hospitals responded very differently to each of these tragic incidents, and I drew two major lessons from those experiences that have guided everything I’ve done over the past two decades:
- When patients suffer harm, we should not ignore our mission, vision, and values in exchange for financial priorities and worries about financial exposure.
- Prioritizing financial concerns over clinical principles increases the risk of patient harm, while disregarding the reasons people dedicate themselves to healthcare in the first place.
Healthcare is unavoidably risky, and we cannot control all the risks. How hospitals and health systems respond when patients are harmed is an important piece of the continuum of patient care. Unfortunately, this niche has been traditionally dominated by fear of litigation—leading to a lockdown in which the hospital, doctors, and other involved parties cease communications with the patient until a confidential settlement is reached, without much regard for the unintended consequences of such a myopic view.
Despite its long standing, this traditional, adversarial approach is counterproductive to nearly every aspect of the very mission of most healthcare organizations, including patient safety as a primary focus (“first, do no harm”) and healthcare worker wellness. The consequences range from frustrated patients (and additional suffering), to more lawsuits, to eroding patient trust and reputation damage.
Clearly, a better approach is needed.
A deeply ingrained (but utterly misguided) tradition
The best risk management is to not hurt somebody in the first place. The second best is to not do it again.
In healthcare, that notion reflects an understanding that, despite the best intentions, accidental and unforeseen outcomes can happen—and they can cause harm. Acknowledging the inherent risk is the very basis for informed consent—an expectation that patients will be given enough information about treatment alternatives and risks to make a well-educated decision.
Unplanned outcomes can happen for several reasons, including gaps in organizational systems or processes, human error or negligence, uncontrollable risks, or natural history of disease.
Similarly, providers can enact a wide range of responses. Unfortunately, litigation concerns have historically determined the response.
In my previous life as a defense malpractice lawyer, I actively participated in that system, where the traditional legal response to patient harm was best characterized as “deny and defend.” That thinking has been deeply embedded within healthcare organizations and their legal departments for centuries: Lawsuits against physicians in the U.S. are reported as far back as the 1700s and help explain why medicine has resigned itself to litigation as a cost of doing business. From a patient safety standpoint, that resignation is self-defeating.
Why would you tell a healer to run from a patient who needs help? Why would you instruct a physician not to talk to a patient—a person who has placed their life in the physician’s hands? I still can’t understand why such an approach has gone unchallenged for so long.
In part, this mindset has been perpetuated by executives who feel powerless to challenge the status quo. Hospital CEOs have told me that their questions and comments are “unwelcome” when it comes to promoting better ways for responding to patient harm. We’re fighting centuries of narrow, lawsuit-averse thinking. In stark contrast to the ways of the modern patient safety movement—which, by all accounts, started in 1994 with the publication of an article by Harvard School of Public Health professor and surgeon Lucian Leape—healthcare executives have always been expected to hand off problems to their lawyers. In blindly delegating their response to those in charge of claims, healthcare executives don’t see the damage traditional “deny and defend” responses are doing to nearly everything else they’re trying to do to improve their safety culture and performance. It’s so inconsistent with why people enter healthcare professions to begin with.
What about the patient (and others who are hurt)?
Patients harmed in the course of their medical care can experience emotional and psychological injury long into the future. The quality of the hospital’s response to harm matters, and traditional approaches exacerbate the cycle of trauma—not just in patients, but also in caregivers who can be devastated by the fear that something they did (or didn’t do) caused injury to a patient. Countless caregivers have poured their hearts out to me over the years, genuinely concerned for their patients.
Why would you tell a healer to run from a patient who needs help? Why would you instruct a physician not to talk to a patient who has placed their life in the physician’s hands? I still can’t understand why such an approach has gone unchallenged for so long.
We harm patients further by treating them as adversaries when they need compassion and help the most. In addition to being forced to endure a prolonged wait to be seen and (if appropriate) compensated, the “deny and defend” process further marginalizes patients. They’re insultingly stereotyped as opportunistic—ungrateful patients seeking a financial windfall at our expense—spurred on by pinstriped lawyers pursuing their own payday.
Cross examining thousands of patients and families, it was clear that their motivations for suing follow very different themes:
- They need answers—simple answers about what happened and why.
- They feel an intense responsibility to ensure that what happened to them doesn’t happen to anyone else.
- They want to be seen and to know that someone is being held accountable.
Yes, some studies also list financial concerns, especially in a country sadly lacking a social safety net. But research and my own experience clearly conflict with the stereotype of the litigious patient—a stereotype that’s not only inaccurate, but also deeply harmful to nearly everyone involved.
The only ones to benefit are those who make their livings in litigation.
A better way to handle litigation
In 2001, I had an opportunity to reconsider these issues for my longest-standing client, the University of Michigan Health System. I sat down and outlined what later became known as the Michigan Model, a different way of handling litigation by focusing on communication, full disclosure, and learning from medical errors.
Like the rest of healthcare, the University of Michigan Health System was risk averse. Most cases were defended to the courtroom steps, then settled. While common in medical malpractice litigation, that practice has a corrosive effect when a caregiver acts reasonably but the patient outcome still falls short. Already traumatized by their patient’s outcome, caregivers hope for support from the organization but see those cases settled anyway.
As I outlined my plan, which had been germinating for a while, for a more clinically principled approach, I essentially talked myself into a career change, accepting a job with the university and leaving the law firm I founded with two partners. I naively imagined I would return to the firm in a year or two, but nearly 18 years later, I retired from the University of Michigan in 2018.
During that time, the university health system saw a dramatic decline in the number of claims and lawsuits—as well as a decline in legal costs. More importantly, it made several changes to clinical care as a result of lessons learned from patient complaints.
Communication and resolution
I joined Press Ganey in 2021 as a partner and strategic consultant because I recognized that the foundational values of my work overlapped almost perfectly with Press Ganey’s work across the healthcare Human Experience. That work embraces everything from patient expectations and patient experience, to clinical excellence, to workforce safety and wellness, to leadership training.
My commitment to the concepts underlying the Michigan Model remains strong. Meanwhile, a growing number of hospitals and health systems are applying the principles of what has commonly become known as “communication and resolution”—an approach that puts patient safety at the forefront—which helps to improve clinical outcomes and workforce engagement while reducing litigation costs. And this approach is grounded in simply being honest with patients who have experienced unintended clinical outcomes.
Although I fully support this approach, I cringe at the phrase “communication and resolution programs.” It’s a label that highlights potential litigation and claims instead of clinical safety, which is the ultimate goal. Worse, the word “resolution” is offensive to patients and their families who struggle with the lasting harm caused by preventable medical errors. Lost in the mix are the longer-term values of questioning the “deny and defend” mentality. Because, as important as an avoidable patient injury is to us, the most important patient is the one we haven’t harmed yet.
In my previous role, I often told patients after they experienced harm that we would take what we learned and do our best to ensure that it never, ever happens to anyone else. “We will treat you with honesty and transparency, not just because you deserve it and should expect it, but because we cannot hope to improve without it,” I would explain. “I’m sorry the damage to you has happened, and we will do our best to make it right. But I can promise you this: It will not be in vain.”
My hope is that more hospitals and health systems will realize the long-term and cultural benefits of this approach. Aside from being the right thing to do, it also results in significant returns on investment that transcend financial savings.
We must normalize transparency—and underscore the importance of honesty as well as speaking up for safety. This not only sharply reduces litigation, but it also leads to improved clinical care and can stimulate remarkable changes in peer review, for example. Instead of peer review being a quasi-legal and disciplinary approach, it can instead be a proactive and positive force that both detects problems before anyone gets hurt and embraces healthcare providers, helping them to improve. And that, in turn, becomes an effective tool for recruiting and staff retention.