“Finally he [the doctor] came out to tell us it was over… that there was nothing they could do. And as a grieving parent, we were very angry for a very long time but we really just wanted to know what happened and that was not afforded us.”*

~Sharon Delaney McCloud | Patient’s mother

“I had a patient about ten years ago who threatened to sue me. I felt the obligation to call my malpractice carrier at that time and the first thing they said was do not talk to the patient, do not write to them, do not do anything. We will handle everything. So they took away my humanity from this case.”*

~Robert Lacin, MD | Neurosurgeon
*Cases are unrelated

In the event of an adverse medical outcome, patients often pursue litigation simply to obtain information that has been withheld. Research shows that the three things patients want most in the face of medical error are:  information about what happened; a sincere apology; and measures to prevent the error from happening to someone else. Financial compensation is lower on their list. Patients generally seek attorneys out of anger rather than greed. When unanticipated adverse outcomes occur, error or not, doctors tend to distance themselves from patients and their families due to feelings of guilt and fear of malpractice litigation. However, this defensive response only fuels speculation that something went wrong, otherwise information would not have been withheld.

Lawsuits strongly affect doctors. Among physicians that have been sued for malpractice, 97% experience significant physical or emotional reactions. They often feel unfairly targeted. Although actual rates of medical error are high, doctors overestimate the rate of malpractice claims brought in response to those errors, perhaps because the impact is so devastating to them. A recent study in the New England Journal of Medicine found that 75-99% of physicians, depending on their specialty, are sued during their careers. Even seeing a colleague endure the process of litigation is quite painful and anxiety provoking. As a result, physician tolerance for uncertainty about medical outcomes is pushed to very low levels and they practice medicine more defensively. After unanticipated bad outcomes, whether there has been an error or not, patients often become “potential plaintiffs” in the minds of physicians. In reality, only 2-3% of patients injured by medical mistakes actually file lawsuits and only half of those who bring a suit ever receive compensation.

On a national level, we are becoming increasingly aware of the frequency of medical errors. Currently, medical errors are the eighth leading cause of death in this country, more than motor vehicle accidents and breast cancer combined. This statistic does not include the number of errors resulting in permanent injuries that do not involve death. Recent estimates, according to DHHS Secretary Sebelius, are that one in three hospitalizations result in a medical error. Tremendous efforts to increase patient safety have been directed at encouraging disclosure of errors and near misses in order to understand why they occurred and design safer systems. Patient safety improvements depend on the ability to learn from errors and near misses, yet disclosures, when they occur, are far from the norm. Fear of litigation creates secrecy and mistrust, and lack of disclosure creates frustrated angry patients and families.

Why not consider another option?  One that encourages medical disclosure and transparency through a safe, supportive and highly effective process that addresses both the individual needs of the patient and the physician and also the broader goals of disclosure and patient safety? Though appropriate for some cases, our tort system provides only one remedy, financial compensation. Medical malpractice claims are about so much more than money. We need to resolve conflicts early, through a process that brings parties together face-to-face to work toward conflict resolution and restoring relationships.

The Integrated Accountability & Collaborative Transparency Program (IACT Program)

The IACT Program is an entirely new approach for disclosure and transparency that combines two successful models from different contexts for early dispute resolution in the health care setting. This innovative, new combination uses the disclosure-and-offer model (as exemplified by the University of Michigan), and builds upon it through the use of Collaborative Law (an alternative dispute resolution model used for the past 25 years in the family law arena). The result is a safe and supportive resolution process that values transparency and early disclosure of medical errors for patients, doctors and health care organizations so that physical, emotional and financial stress for all parties will be minimized.

This model serves as an alternative to our current tort system more adequately meeting the needs of:

• patients for full disclosure, understanding and in appropriate cases, an apology and timely compensation
• physicians to proactively address issues and communicate with their patients in a safe and effective way so that both the physician and patient can gain closure
• health care organizations to learn from errors and near misses to improve systems and processes in healthcare delivery
• society to simultaneously increase patient safety and reduce costs.

Our model provides a formal program that is supportive and healing for patients, families and medical personnel through the use of skilled Collaborative Law attorneys and neutral medical experts who are dedicated to the peaceful, non-adversarial and cooperative resolution of conflict. Thus, when unexpected adverse outcomes occur, there is a safe and effective process for understanding and resolving complex issues using interest-based negotiations without increasing the likelihood of malpractice lawsuits.

The resulting breakthroughs are increased health care quality and reduced costs to the medical system through improved processes and system design. In addition, cost savings are achieved through decreased dollars spent in the practice of defensive medicine, in the expense of treating medical errors, and in the costs associated with medical malpractice litigation.

How does the IACT Program work?

“The IACT program allows a safe harbor for all of the interested parties to share information, and see each other as human beings. IACT is the perfect forum for a physician or hospital to explain to an angry or confused patient that very few adverse outcomes are the result of negligence. Patients can see the process as a way to get factual answers to questions in an environment where they feel protected and supported.”

Christopher R. Nichols, JD
The Nichols Law Firm

The IACT Program uses specially trained Collaborative Law attorneys, coaches and neutral medical experts, who are committed to the peaceful, non-adversarial and cooperative resolution of conflict. The program focuses on interest-based, rather than positional, negotiations, as well as healing and closure for both patient and provider. Participation is voluntary and parties never give up their right to the tort system.  If a mutually satisfactory resolution is not reached, the Collaborative Law attorneys must withdraw, as they are barred from litigating the case. Collaborative Law attorneys are settlement experts and if a case is impassed, the attorney may refer the party to litigating attorneys, if so requested.

Collaborative Law is not mediation. When parties mediate, they are often locked into positions, the attorneys do most of the talking, and much of the process takes place with the parties separated. In Collaborative Law, the parties sit together face-to-face and engage in difficult but very much needed conversations. The Collaborative Law attorneys help to structure the conversation and guide each party to better understand and communicate underlying needs and interests to the other party. Patients may have the need for information and empathy, forgiveness of a bill, provision of follow-up treatment, or even compensation. Physicians may also need to share information about what happened and their feelings about the bad outcome; they may also need to apologize to gain closure. Both patient and doctor may have an interest in restoring their relationship and avoiding the stress of litigation. Health care organizations may have the need to resolve conflict, to avoid negative publicity, and to learn about events to improve quality of care in an effective and efficient manner.

Collaborative Law attorneys then assist the parties during the Collaborative Conference to create a resolution that most adequately meets the needs of the parties. Medical professionals are often denied the chance to speak directly to patients and families, even when there has been no error, though having such a conversation would help all involved gain closure. Each is able to ask questions and share information he or she believes is important for the other to know. The IACT Program allows medical professionals the ability to proactively engage patients and their families after an unexpected adverse outcome, and it allows patients to do the same.

The IACT Program requires both parties to sign a Participation Agreement with a confidentiality clause regarding the information that will be discussed during the Collaborative Conference. The parties meet with their respective Collaborative Law attorney and prepare for the Collaborative Conference when all parties will meet. Most cases involve between one and three conferences, each lasting two to three hours. A neutral medical expert with subject matter expertise provides information for both parties to review about the medical care. A Collaborative coach meets with each party to assist the party in understanding and communicating his or her needs effectively in the conference. If resolution is reached during a conference, the attorneys draft a Health Care Settlement Agreement.

An Unexpected Adverse Outcome:  An Example Case

Sarah Smith is a seventy-one year old woman suffering from End Stage Renal Failure. She is unmarried and has two adult children, a daughter, April, and a son, Sam. Sarah needs ongoing dialysis treatments. To facilitate those treatments, she is scheduled to receive an upper arm arteriovenous graft (an artificial vein that can be used repeatedly for needle placement and blood access during dialysis). This procedure is to be performed at Hometown Medical Center. Dr. Adams is the anesthesiologist assigned to Sarah’s case and is an employee of Hometown Medical Center. Dr. Broch, who has privileges at Hometown, is the surgeon scheduled to perform the graft. The day before the operation, Dr. Adams completes a pre-anesthesia evaluation and finds nothing remarkable. When asked, Sarah communicates to Dr. Adams that she has never had an adverse reaction to anesthesia.

On the day of the surgery, shortly after Dr. Adams administered the anesthetic medication to Sarah and prepared to intubate her, Sarah became stiff and unresponsive. Dr. Adams immediately gave Sarah oxygen through bag-valve-mask ventilation with no improvement in her condition. She then attempted to intubate her but this procedure was also unsuccessful. Sarah went into cardiopulmonary arrest. Dr. Broch performed an emergency tracheotomy but she remained unresponsive. Sarah was pronounced dead. Her children were notified. During notification, her children informed Dr. Broch that Sarah had experienced an adverse reaction to anesthesia once before.

How might this story end without the IACT Program? (The Tort System/Litigation Model)

Both Dr. Broch and Dr. Adams have reviewed and re-reviewed the events of Sarah’s preoperative care many times. Both doctors firmly believe no medical error was committed yet they are very distraught and continue to question not only their own care but also each other’s care of Sarah as well. Dr. Adams worries that she may not have asked enough questions to elicit the information about Sarah’s prior adverse reaction to anesthesia. Dr. Adams has also begun to question whether she and Dr. Broch properly performed the procedures when trying to save Sarah’s life. Dr. Broch has been asking himself the same questions; however, Dr. Adams and Dr. Broch do not discuss Sarah’s care after her death.

Although the doctors have not discussed the matter with each other, they have discussed it with Hometown Medical Center’s Risk Management Department. Dr. Broch has also reported the incident to MedMal, his medical malpractice insurer. MedMal has retained outside counsel for Dr. Broch who has advised him not to discuss the incident with the Smith family. Hometown Medical Center has decided to retain outside counsel to represent its interests and those of its employee, Dr. Adams. Similarly, counsel for Hometown and Dr. Adams has advised them not to speak to the Smith family to prevent statements that might be used against them in a lawsuit.

April and Sam continue to think about what happened to their mother. They have questions they would like both Dr. Adams and Dr. Broch to answer. Repeatedly, they call the hospital and Dr. Broch’s practice for several weeks but their calls are not returned. Although both doctors would like to talk to the Smith children, both physicians and the hospital follow their counsels’ advice. Meanwhile, the family becomes increasingly frustrated that no one will return their calls. Although they are not sure that either Dr. Broch or Dr. Adams did anything wrong, they become more and more upset as they get no response. In the meantime, April Smith has requested her mother’s medical records from Hometown Medical Center. The hospital has trouble locating the records. April and Sam grow angrier as they continue to be ignored. After three months, April finally decides to retain an attorney and eventually sues Dr. Adams, Dr. Broch, and Hometown Medical Center in order to get answers.

After two and half years of interrogatories, requests for production, depositions, and motions, the case is eventually dismissed with legal defense costs of $17,000 incurred by Dr. Broch and $19,000 by Hometown Medical Center. All parties have endured the stress of continuous involvement in an adversarial process. The lawsuit has not given the Smith family the closure they needed and expected. Moreover, litigation did not offer them an opportunity to speak with either physician directly. Dr. Adams and Dr. Broch would have liked to explain to April and Sam why their mother did not survive what should have been a routine procedure. They wanted to show empathy for their patient’s grieving children. They wanted to communicate that they desperately wished the critical piece of information about Sarah’s history of anesthetic reaction had been provided.

How might this story end with the IACT Program? (The Collaborative Law Model)

Both Dr. Broch and Dr. Adams have considered the events of Sarah Smith’s surgery many times. Both physicians firmly believe that neither has done anything wrong but each has second-guessed her care. Dr. Adams and Dr. Broch have discussed the matter with Hometown Medical Center’s Risk Management Department. Hometown Medical Center strongly encourages its physician employees and those with privileges to participate in the IACT Program. Upon admission, every patient is automatically enrolled in the Program and may elect to participate.

The Smith children continue to think about what happened to their mother. They have additional questions they would like Dr. Adams and Dr. Broch to answer. They phone the hospital and Dr. Broch’s practice and all agree to participate in the IACT Program.

Beginning Stage – Transparency and Disclosure

Within weeks of Sarah’s death, Dr. Adams, Dr. Broch, the Smiths and Hometown Medical Center each select an attorney from a list of several IACT Program Collaborative Law attorneys provided to them by the IACT Program case manager. IACT Program attorneys alternate representing patients, doctors, and hospitals to avoid being locked into one point of view.

Hometown Medical Center gathers Sarah Smith’s medical records and provides them to the IACT Program’s case manager. The case manager makes copies for the attorneys and neutral medical experts, who have been designated by IACT, to review the records and render an opinion about the quality and standard of care provided. In this instance, the neutral experts are an anesthesiologist and a vascular surgeon. Upon review, the medical records indicate that the day before the operation, Dr. Adams asked Sarah if she had ever experienced an adverse reaction to anesthesia; she responded negatively.  However, the family knew of their mother’s prior adverse reaction to anesthesia, though they were unaware that Sarah had not communicated this adverse reaction to Dr. Adams. In this hypothetical scenario, the neutral medical experts have determined that neither Dr. Adams nor Dr. Broch violated the standard of care.

In order to prepare for the Collaborative Conference, Dr. Broch, the Smiths, and Dr. Adams together with Hometown Medical Center meet separately with the IACT Program Collaborative Law attorneys they each selected. Each lawyer helps his or her clients to identify their needs and to set the goals and objectives for the meeting. The attorneys will also communicate with each other in order to encourage and facilitate a cooperative approach.

Middle Stage – The Collaborative Conference

The Smiths, Dr. Adams, Dr. Broch, and Hometown Medical Center, along with their IACT attorneys, gather for a Collaborative Conference at a neutral location. Prior to the conference, the Smith children were having a difficult time believing their mother had not revealed a previous adverse reaction to anesthesia. The Collaborative Conference allows April and Sam to ask questions about what Dr. Adams and Dr. Broch knew and when they knew it. April and Sam were confused because several years before, their mother had experienced a much milder reaction to anesthesia. Dr. Adams was able to explain her standard preoperative procedure and to review with the family the notes she made the day before surgery. The conference allows Dr. Adams and Dr. Broch to fulfill their individual needs to speak directly to the family. Each physician is able to explain why they had no reason to expect Sarah would have had an adverse reaction and how their efforts to save Sarah had failed, despite their best efforts.

The impartial medical review, which found no medical error, reinforced the belief that Sarah Smith had received appropriate care. It also offered consolation and reassurance to both Dr. Adams and Dr. Broch. Each doctor had replayed that day’s events many times, questioning their own care and one another’s as well. Although both physicians were upset that Sarah had died unexpectedly, the neutral medical review helped them stop questioning whether they had made a mistake. Dr. Adams and Dr. Broch appreciated not only the chance to speak directly with Sarah’s children but also to sincerely express their remorse about her death. Both physicians had an opportunity to meet with a Collaborative coach before the conference and felt better able to communicate these difficult feelings to the Smith children in a productive and non-defensive way.

April and Sam are relieved to have answers to their questions, and are grateful to Dr. Adams and Dr. Broch for doing everything they could to save their mother’s life. They wished Dr. Adams had thought to ask one of them about any prior reactions to anesthesia, especially since their mother was elderly and at times forgetful.

After meeting with her IACT Program coach, April realized and was able to express to Dr. Broch and Dr. Adams that she knew her mother occasionally experienced lapses in her memory and that April felt guilty that she did not make the history of the reaction to anesthesia known to the doctors beforehand.  When April communicated these feelings to the doctors during the Collaborative Conference, she saw them noticeably soften and become more able to empathize with her.

End Stage – Resolution

The parties chose to enter into a Health Care Settlement Agreement, which included a waiver of the right to sue any party, and an agreement by Hometown Medical Center to improve its pre-surgery anesthesia questionnaire and to check with family members if the patient is elderly and there is potential for memory loss. Since the Smiths did not file a lawsuit but instead chose to utilize the IACT Program, a program the hospital had made them aware of, the physicians and hospital were able to save the time and resources it would have devoted to defending a lawsuit. The IACT Program allowed the physicians to focus on quality healthcare delivery and patient safety rather than emotional stress and the distraction of lengthy litigation. As a result of Sarah Smith’s death, the hospital also reviewed its protocols with the help of Dr. Adams and Dr. Broch to improve how negative outcomes to anesthesia are disclosed to patients and families. In addition to increasing patient safety, Hometown Medical Center improved its relationship with the Smith family and avoided the negative attention a lawsuit would have attracted. The collaborative process also strengthened the hospital’s relationship with both Dr. Adams and Dr. Broch who continue to work with Hometown Medical Center.

Conclusion and Final Thoughts

“As a former hospital and physician practice administrator, I believe the IACT program represents an incredible opportunity for the healthcare provider community to move beyond traditional thinking and embrace an innovative model of risk management offering improved quality of care, enhanced public perception and financial savings.”

Timothy L. McNeill, JD, MHA,
RTP Law/McNeill Law Offices, PLLC

When unexpected outcomes occur, the IACT Program provides a safe and effective process for understanding and resolving complex issues, whether there has been a medical error or merely an unanticipated adverse outcome. It offers the opportunity to share information and compensate a greater number of patients, while enhancing quality of care and reducing overall legal expenses.

Transparency also allows medical professionals and health care organizations to learn from errors, near misses, and adverse outcomes. Specifically, health care organizations will have the benefit of this information to improve systems and processes in healthcare delivery. In turn, improved systems help account for inevitable human error but reduce the risk of catastrophic injury as a result of it. When health care professionals work in a culture that encourages disclosure and learning from errors, near misses and adverse outcomes, patient safety improves and legal and healthcare costs decrease.

Christie M. Foppiano is a lawyer with sixteen years of experience in private practice as a litigator and general counsel. She is also a certified Superior Court Mediator who owns Foppiano Mediations in Cary, NC and is trained as an IACT Program Collaborative Law Attorney. www.mediationsnc.com.

Jessica S. Scott, MD, JD is a Board Certified Family Physician, Attorney, and Mediator. She is the Director of Healthcare ADR Innovation at Carolina Dispute Resolution Center in Raleigh, NC and she is the originator of the model used in the IACT Program. Jessica has led the launch of the IACT Program, receiving national attention regarding this groundbreaking and transformative approach.www.IACTProgram.com

Aida Doss Havel, formerly a litigator, is now a Mediator and Collaborative Law Attorney in Raleigh, NC. She is a member of Separating Together, a Collaborative Law Practice Group, and serves on the IACT Leadership Committee, recently helping to train attorneys and coaches to participate in the IACT Program.www.SeparatingTogether.com

By Christie M. Foppiano, Jessica S. Scott and Aida Doss Havel