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When a patient is harmed, how do we respond?

Healthcare has always carried inherent risk. Which means, occasionally, someone is harmed. But how we respond in such cases can be as important as the safety event itself. Organizational efforts to improve those responses have become widely known as Communication and Resolution Programs (CRP). A couple of stories from my decades of healthcare experience illustrate just why these programs are so essential. 

As a young lawyer in 1982, I was assigned a birth-trauma case—one of the most catastrophic kinds of cases there is. This one was unusual for a couple of reasons. First, it involved the birth of a baby 10 years earlier. Second, the lawsuit was filed with a request to the court to rule that a document, which was signed by the parents right after the birth of their baby and seemingly absolved the hospital and doctors of any responsibility, was illegal and unenforceable. The story that developed is a perfect illustration of what’s wrong with the litigation-forward response that has long prevailed when patients are harmed. 

This mother delivered her daughter at a small community hospital outside a major Midwestern city. Right after the birth, the baby was hustled off to a children’s hospital in the big city, with little explanation other than, “We had some difficulty, but I’m sure your daughter will be alright.”  

The day the mom was discharged from that community hospital, two men in suits walked into her room. One was the hospital risk manager, and the other insurance guy (though she wasn’t aware of their roles at the time). Knowing the new parents were uninsured, the two hospital visitors said, “We’re so sorry that your daughter had to be transferred, but she’s in good hands. But to show you how sorry we are, if you sign this piece of paper, we will waive your hospital bill.” The paper they put in front of the couple purported to be a total release of all claims. 

After securing her signature, these guys high-fived in the hallway and celebrated their genius at sparing the hospital an expensive malpractice exposure. 

Why did these two employees think that was a good idea? By the time I got the case 10 years later, that question had become even more poignant. I discovered that the hospital’s obstetrician—who had mismanaged a shoulder dystocia so badly that the baby girl suffered a global brain injury—had accounted for four more similar cases since then. That really left an impression on me: 

When patients suffer harm, it’s about a lot more than financial priorities and financial exposure.

‘This one’s on us’

Many years later, I received a chilling Friday afternoon phone call from the director of maternal fetal medicine (high-risk obstetrics) at an academic health system. “I just delivered a blue and unresponsive baby. She’s off to the NICU,” he told me. “I’m reasonably sure she’s brain damaged. And this one’s on us.” 

The mother was a 19-year-old woman from Ghana. When she had shown up at the hospital that previous Monday, with concerns about decreased fetal movement and abdominal pain, she had been assigned not to obstetrics, but to family medicine. A fetal heart tracing was done, and a family medicine doctor interpreted the results as completely benign. “You’re going to be a mother soon,” the doctor gushed. “You’re almost ready to go.” When doctors delivered the baby that Friday, it was almost five full days too late. That previously conducted tracing, it turned out, showed clear signs of fetal distress. 

The typical, cynical response in my field might have been to call immigration. Social work was reasonably sure she was in the country undocumented and wasn’t likely to file a lawsuit from Ghana. Or the response might have been something like this: “Let’s just sit tight. They may have 10 or 15 years to bring a lawsuit, but our biggest exposure has to do with this child’s life expectancy. If she’s really brain damaged, she will not be able to manage her secretions or oral intake. Statistically, she will likely die of a respiratory infection or repeated pneumonias. So, let’s circle the wagons, keep our heads down, and do nothing.” The health system did exactly the opposite. 

Instead, they called the best birth-trauma lawyer in the state and asked for his help. They explained what had happened and that, as far as they were concerned, it should never have happened at all. But they also asked him to make two promises. 

“We won’t know for probably 18 to 24 months where this baby will plateau neurologically,” they said. “In the meantime, we want to take care of this mom. So, first, will you agree to open a conservatorship or a guardianship with the probate court?” This would enable the court to oversee the use of support money that would be given to the mother. 

“Secondly,” they told him, “we want to resolve this case based on the child’s needs, not what jury verdict the case might elicit.” He agreed to both terms—and was true to his word. Almost on the little girl’s second birthday, with the help of a life care planner and some of the finest economists in the country weighing in on what the child would need in the future, they were able to settle the case for $4.8 million—a fraction of what verdicts' juries in these cases often return. That is a bargain in their state, where similar cases often settled for $10 million to $20 million or more at the time. 

More importantly, immediately after speaking with the lawyer, the fetal tracing was shown to family medicine leadership without telling them what had transpired in the days since. All three of them said, “I hope that baby got delivered.” There was nothing subtle about the fetal distress shown on that tracing. Instead, the delivery was delayed by days. So the team said, “One of your own faculty members totally missed this. This baby was just born today. We’re really concerned, not only about the damage to the baby and the financial exposure, but especially because this is so fundamental. Do you have other concerns about this physician?”  

“You don’t know the half of it,” the obstetrics chief replied. “I don’t think there’s a member of our department who isn’t concerned about her.” Yet during those years, not a single incident report or report of concern was filed. Nobody had acted. So nothing was done.  

They moved quickly, assembling a team that pored over her charts that weekend and saw three things. One: She was quite good as a primary care doctor and had a loyal following. Two: She was challenged in obstetrical care, which was chilling—it was a blessing that she hadn’t hurt anybody else before this case. Three (a real surprise): A huge component of her practice was with chronic pain patients, and there was no rhyme or reason to how she prescribed opioids. She was an easy access point for anybody who wanted the highly addictive drugs. 

The following Monday, the doctor’s obstetrical privileges were suspended, pending further determination, and her chronic pain patients were reassigned. She was indignant, insisting she knew obstetrics. Furthermore, she boasted, “I have more chronic pain patients than anybody. I really know what I’m doing.”  

“No,” the team replied. “You have more chronic pain patients because you’re an easy mark. There is no consistent pattern to your prescribing practices.” 

The point of these two stories is: 

When you prioritize financial concerns over clinical principles, you greatly increase the risk of patient harm—and disregard why people go into healthcare in the first place. 

Doing the right thing

I wish I could tell you that what happened 50 years ago doesn’t happen anymore. But it happens all over the country. We treat doctors as though they’re the victims of these situations. Even today, health systems don’t often do a hard, sober analysis of unanticipated clinical outcomes.  

For example, more recently, after several months working with hospitals in the Northeast, I realized they weren’t routinely engaging families after unplanned clinical outcomes. When I questioned why, I was told that if the “complication” was covered by the consent form, they simply didn’t count them—as though a consent form was a license to deliver substandard care!   

The key difference between the two birth-trauma stories lies in each hospital's response. The first case was marked by a lack of transparency and prioritizing the hospital’s short-term financial interests over the patient and family and, worse, over the hospital’s long-term patient safety interests. In the second case, the health system understood that nothing short of total accountability would be an appropriate response for both the patient and for its own patient safety priorities. And then they had to take what they learned to make sure the serious safety event wouldn’t happen to anyone else in their care, ever again.  

In the practice of healthcare, there are inherent risks, and sometimes adverse outcomes occur. To improve patient safety while reducing the organization’s exposure to litigation and associated costs, an increasing number of healthcare organizations have implemented Communication and Resolution Programs. In my next blog post, I’ll discuss the need for these programs, what they can accomplish when they’re properly executed, and the challenges they must overcome.  

I’ll also share why I hate the phrase “communication and resolution.”