Forty-one years ago, I started my professional life as a trial lawyer. I realized early success defending hospitals and healthcare professionals accused of medical malpractice. I enjoyed it. Every case was different, I was intrigued by medicine and science, and I was privileged to represent some exceptionally dedicated and smart people. Though I’ve never walked a mile in a healthcare practitioner’s shoes, defending these dedicated professionals required me to intimately understand their realities.
Unfortunately, I eventually discovered that the malpractice legal process did very little to prevent harm to patients. I was ultimately hired as a lawyer to deflect blame for my clients, not to help heal gaps in care that led to claims in the first place. As a result, the same clinical mistakes were repeated across my client base.
After more than 20 years, I left private practice to lead the University of Michigan’s health system litigation risk and claims management efforts with a simple idea: Addressing patient harm outweighs deflecting accountability. Having helped develop the Michigan Model, a successful communication and resolution program (CRP), I’ve seen first-hand how honesty and transparency remarkably improve zero harm pursuits.
The pitfalls of 'deny and defend'
“Deny and defend” perfectly captures what was expected of me as a defense trial lawyer. Prioritizing any chance to defend a possible lawsuit, lawyers worried about a stray comment that would admit fault, and that any change to the way clinical medicine was being delivered would be an admission that what was done previously was wrong or deficient. This legal mantra demanded that institutions never apologize, admit mistakes, attempt to explain situations, change the delivery of clinical care, or make any internal or public comments about the situation.
Since lawyers advised healthcare clients not to talk about mistakes or change flawed care delivery, institutions risked repeating the same harm events with more patients. As the primary response to patient harm, “deny and defend” wasn’t just missing the heart of the problem; it was feeding it. Stonewalling and ignoring harmed patients understandably led them to hire lawyers. By defending questionable care, we undervalued patient safety. Doing anything to avoid blame, we virtually guaranteed that more patients would be harmed and hire more lawyers, reinforcing the “deny and defend” tradition.
Mapping a better way
The best risk management is to ensure that patients are not harmed; the second best is to ensure they’re never harmed again. Accountability is only possible in a culture that promotes honesty and transparency, and “deny and defend” runs counter to these values. Driven by the imperative to reach zero harm, I drafted three simple principles that would guide claims response at the University of Michigan Health System: The institution would move quickly and fairly to compensate harmed patients; we would support our professionals when they delivered appropriate care; and in all cases, we would learn from our patients’ experiences.
Between Christmas and New Year’s Eve in 2001, on paper stretched across a conference room wall, I mapped out a workflow envisioning nine essential elements that would:
Capture unplanned clinical outcomes when they happened instead of waiting for claims
Immediately secure the clinical environment to ensure that no other patients were harmed
Engage and support the patient and family
Engage and support the clinicians involved
Immediately investigate and assess incidents, not for their “defensibility” in a courtroom, but to determine if the event was preventable
Communicate the results of our investigation openly and honestly with the patient, family, and healthcare professionals
Encourage accountability and compensate when needed
Expedite clinical care improvement while treating injured patients with honesty and fairness
Create measures that reflect our priorities and gauge improvement
Later known as the Michigan Model, the approach resonated immediately with all layers of clinical staff. Patient safety reporting skyrocketed once the staff believed that improvement would follow reporting incidents. We were on the road to replacing defensiveness with a new normal: honesty, transparency, and a commitment to zero harm.
Honest accountability prevents further harm
Though some skeptics were certain honesty would lead to financial catastrophe, clinical improvements accelerated while claims numbers improved.
For example, a patient had a procedure to address the risk of potentially catastrophic bleeding from a congenital cranial blood vessel malformation. After an apparently successful operation, the nursing staff noticed early signs of a possible stroke. To determine if these were caused by a post-procedure bleed or clot, the patient was rushed to a CT scanning. If she had suffered a bleed, surgeons planned to get her to the operating room and administer 30 units of heparin, a powerful anticoagulant. After the neuroradiologist reported no evidence of a bleed, the neurosurgery resident administered the medication. The patient immediately improved, but then suddenly crashed. Follow-up scans showed a massive bleed deemed inoperable. She was placed on life support and her family was called to come by her side.
As the attending physician was apologizing to the family and explaining that the bleeding was an inescapable risk of the procedure and anticoagulant, the resident rummaged through medical waste to find the spent vials of heparin. His worries that he may have administered an overdose of the drug were unfortunately confirmed. The plan called for 3,000 units; the labels showed the number “1,000” in large print, but “X 10” in smaller print. He self-reported that he had accidentally administered a tenfold overdose.
That morning, we allowed the resident to disclose the error to the patient’s family, which he did through tears and heartfelt apologies. Shocked for what seemed an eternity, in an act of unbelievable generosity, the patient’s sister broke the silence when she crossed the room and embraced the young surgeon. “Please don’t forget my sister,” she said. “But don’t you dare quit! We’ve watched you and you really care. You’ll do a lot of good for a lot of people. Don’t you dare quit over this.” With that profound act of forgiveness, she likely rescued that young surgeon.
We realized almost immediately that the mistake happened because heparin was available in bins. Had the nurses assisting the resident obtained the heparin from the pharmacy, instead of loose in a bin, it was likely a tenfold overdose and resulting patient injury would’ve been avoided. Within 24 hours, the organization had been informed of the harmful mistake and removed all loose heparin from bins. The neurosurgery resident and nurses were given paid leave and counseling while stricter practices for the use of anticoagulants were immediately put in place.
Transparent communication leads to real patient solutions
Similarly, claims were avoided when harm occurred from complications instead of medical errors. In one example, to an ophthalmologist’s horror, a device used for changing cornea curvature produced a free flap of corneal tissue. After retrieving the tissue from the incising knife, the ophthalmologist tried to suture the patient’s eye. However, after it healed, the patient’s vision was greatly impaired.
The complication was an unavoidable risk of using the device, but the ophthalmologist had ideas about improving the patient’s vision. The patient retained an attorney and intended to sue but willingly met with the doctor, who patiently explained how the complication happened, expressed sincere sorrow at the outcome, and offered to help. A tense argument followed as the patient’s lawyer responded in a very aggressive way.
Reaching across the table to interrupt his lawyer, the patient turned to the ophthalmologist and said, “Doctor, thank you for this honest explanation about what happened. I’m so sorry I hired a lawyer to sue you. Would you take me back as your patient?” A follow-up procedure performed with another ophthalmologist improved the patient’s vision.
There was no claim. Reports were made immediately to the federal government and the surgical instrument manufacturer. Trainings were held within the ophthalmology department, changing the way informed consent was communicated and how procedures were performed.
Accountability changes care for the better
In both cases, a “deny and defend” response would have undoubtedly resulted in lawsuits that may have further traumatized the patients, families, and clinicians for years. It is not an exaggeration to suggest that the neurosurgery resident and two surgical intensive care nurses would have been severely affected, perhaps to the point that any of them might’ve left healthcare entirely. Financially, the loss would have been multiplied several times over. Worst of all, other patients would have been at risk, as any clinical care improvement would be highly unlikely or, at best, seriously delayed. Sadly, the goal to achieve zero harm would have been even further out of reach.
I’m honored to help Press Ganey in its mission of improving patient experience, and look forward to helping hospitals embrace transparency and laser-focus on zero harm. Together, we can pursue a better model for safety and accountability.
To find out how Press Ganey can help you get started on your journey to zero harm, request a consultation with our industry-leading experts.