[Skip to Content]
[Skip to Content Landing]
Table 1.  
Study Site Characteristics
Study Site Characteristics
Table 2.  
Interview Respondent Characteristics
Interview Respondent Characteristics
Table 3.  
Aspects of CRPs That Promoted Reconciliation
Aspects of CRPs That Promoted Reconciliation
Table 4.  
Recommendations for CRPs Emerging From Key Informant Interviews
Recommendations for CRPs Emerging From Key Informant Interviews
1.
Bismark  M, Dauer  EA.  Motivations for medico-legal action: lessons from New Zealand.  J Leg Med. 2006;27(1):55-70.PubMedGoogle ScholarCrossref
2.
Atiyah  P.  The Damages Lottery. Oxford, England: Hart; 1997.
3.
Studdert  DM, Mello  MM, Brennan  TA.  Medical malpractice.  N Engl J Med. 2004;350(3):283-292.PubMedGoogle ScholarCrossref
4.
Mello  MM, Senecal  SK, Kuznetsov  Y, Cohn  JS.  Implementing hospital-based communication-and-resolution programs: lessons learned in New York City.  Health Aff (Millwood). 2014;33(1):30-38.PubMedGoogle ScholarCrossref
5.
Mello  MM, Boothman  RC, McDonald  T,  et al.  Communication-and-resolution programs: the challenges and lessons learned from six early adopters.  Health Aff (Millwood). 2014;33(1):20-29.PubMedGoogle ScholarCrossref
6.
Collaborative for Accountability and Improvement. Communication and resolution programs: what are they and what do they require? http://communicationandresolution.org/communication-and-resolution-programs. Accessed November 14, 2016.
7.
Boothman  RC, Imhoff  SJ, Campbell  DA  Jr.  Nurturing a culture of patient safety and achieving lower malpractice risk through disclosure: lessons learned and future directions.  Front Health Serv Manage. 2012;28(3):13-28.PubMedGoogle Scholar
8.
Robeznieks  A.  Full disclosure first: alternative med-mal approaches show promise.  Mod Healthc. 2013;43(5):32-33.PubMedGoogle Scholar
9.
Lambert  BL, Centomani  NM, Smith  KM,  et al.  The “Seven Pillars” response to patient safety incidents: effects on medical liability processes and outcomes.  Health Serv Res. 2016;51(suppl 3):2491-2515.PubMedGoogle ScholarCrossref
10.
Teninbaum  GH.  How medical apology programs harm patients.  Chapman Law Rev. 2011;15(2):307-337.Google Scholar
11.
Doroshow  J. Patient safety takes a back seat, once again. Huffington Post. http://www.huffingtonpost.com/joanne-doroshow/patient-safety-takes-a-ba_b_4598745.html. Updated March 22, 2014. Accessed August 24, 2017.
12.
Iedema  R, Sorensen  R, Manias  E,  et al.  Patients’ and family members’ experiences of open disclosure following adverse events.  Int J Qual Health Care. 2008;20(6):421-432.PubMedGoogle ScholarCrossref
13.
O’Connor  E, Coates  HM, Yardley  IE, Wu  AW.  Disclosure of patient safety incidents: a comprehensive review.  Int J Qual Health Care. 2010;22(5):371-379.PubMedGoogle ScholarCrossref
14.
Vincent  CA, Pincus  T, Scurr  JH.  Patients’ experience of surgical accidents.  Qual Health Care. 1993;2(2):77-82.PubMedGoogle ScholarCrossref
15.
Southwick  FS, Cranley  NM, Hallisy  JA.  A patient-initiated voluntary online survey of adverse medical events: the perspective of 696 injured patients and families.  BMJ Qual Saf. 2015;24(10):620-629.PubMedGoogle ScholarCrossref
16.
Moore  J, Mello  MM.  Improving reconciliation following medical injury: a qualitative study of responses to patient safety incidents in New Zealand [published online March 9, 2017].  BMJ Qual Saf. doi:10.1136/bmjqs-2016-005804PubMedGoogle Scholar
17.
Agency for Healthcare Research and Quality. Request for task order: comprehensive patient safety and medical liability communication and resolution program educational toolkit. https://www.ahrq.gov/professionals/quality-patient-safety/patient-safety-resources/resources/liability/liability_initiative.html. Reviewed July 2015. Accessed March 3, 2017.
18.
Agency for Healthcare Research and Quality. Communication and optimal resolution (CANDOR) toolkit. https://www.ahrq.gov/professionals/quality-patient-safety/patient-safety-resources/resources/candor/introduction.html. Reviewed May 2016. Accessed October 11, 2016.
19.
Iedema  R, Allen  S, Britton  K,  et al.  Patients’ and family members’ views on how clinicians enact and how they should enact incident disclosure: the “100 patient stories” qualitative study.  BMJ. 2011;343(d4423):d4423.PubMedGoogle ScholarCrossref
20.
Mello  MM, Armstrong  SJ, Greenberg  Y, McCotter  PI, Gallagher  TH.  Challenges of implementing a communication-and-resolution program where multiple organizations must cooperate.  Health Serv Res. 2016;51(3)(suppl 3):2550-2568.PubMedGoogle ScholarCrossref
21.
Glaser  B, Strauss  A.  The Discovery of Grounded Theory. Chicago, IL: Aldine; 1967.
22.
Becker  H.  Tricks of the Trade: How to Think About Research as You’re Doing it. Chicago, IL: Chicago University Press; 1998.Crossref
23.
Hannawa  AF.  What constitutes “competent error disclosure”? insights from a national focus group study in Switzerland.  Swiss Med Wkly. 2017;147(1112):w14427.PubMedGoogle Scholar
24.
Wears  RL, Wu  AW.  Dealing with failure: the aftermath of errors and adverse events.  Ann Emerg Med. 2002;39(3):344-346.PubMedGoogle ScholarCrossref
25.
Manser  T, Staender  S.  Aftermath of an adverse event: supporting health care professionals to meet patient expectations through open disclosure.  Acta Anaesthesiol Scand. 2005;49(6):728-734.PubMedGoogle ScholarCrossref
26.
Wu  AW, McCay  L, Levinson  W,  et al.  Disclosing adverse events to patients: international norms and trends.  J Patient Saf. 2017;13(1):43-49.PubMedGoogle ScholarCrossref
27.
Vincent  C, Young  M, Phillips  A.  Why do people sue doctors? a study of patients and relatives taking legal action.  Lancet. 1994;343(8913):1609-1613.PubMedGoogle ScholarCrossref
28.
Gallagher  TH, Waterman  AD, Ebers  AG, Fraser  VJ, Levinson  W.  Patients’ and physicians’ attitudes regarding the disclosure of medical errors.  JAMA. 2003;289(8):1001-1007.PubMedGoogle ScholarCrossref
29.
Hickson  GB, Clayton  EW, Githens  PB, Sloan  FA.  Factors that prompted families to file medical malpractice claims following perinatal injuries.  JAMA. 1992;267(10):1359-1363.PubMedGoogle ScholarCrossref
30.
Beckman  HB, Markakis  KM, Suchman  AL, Frankel  RM.  The doctor-patient relationship and malpractice: lessons from plaintiff depositions.  Arch Intern Med. 1994;154(12):1365-1370.PubMedGoogle ScholarCrossref
31.
Thomas  EJ, Studdert  DM, Burstin  HR,  et al.  Incidence and types of adverse events and negligent care in Utah and Colorado.  Med Care. 2000;38(3):261-271.PubMedGoogle ScholarCrossref
32.
White  AA, Brock  DM, McCotter  PI, Shannon  SE, Gallagher  TH.  Implementing an error disclosure coaching model: a multicenter case study.  J Healthc Risk Manag. 2017;36(3):34-45.PubMedGoogle ScholarCrossref
33.
National Quality Forum. Safe Practices for Better Healthcare–2010 Update: A Consensus Report. Washington, DC: National Quality Forum; 2010.
34.
Acclaim Otago Inc. Understanding the Problem: An Inductive Analysis of ACC Appeals—Access to Justice for Injured New Zealanders. Dunedin, New Zealand: New Zealand Law Foundation; 2015.
35.
Charon  R.  Narrative medicine: attention, representation, affiliation.  Narrative. 2005;13(3):261-270.Google ScholarCrossref
36.
Brookbanks  W.  Narrative medical competence and therapeutic jurisprudence: moving towards a synthesis.  Law Context. 2003;20(2):74-94.Google Scholar
37.
Duncan  D. The narrative lawyer: exploring narrative competence in legal practice. In:  Therapeutic Jurisprudence: New Zealand Perspectives. Auckland, New Zealand: Thomson Reuters; 2015:21-44.
38.
Frank  A.  The Wounded Storyteller: Body, Illness and Ethics. Chicago, IL: University of Chicago Press; 1995.Crossref
39.
Van Neil  MB, DeVoe  T, Shah  R, Sands  K. Patient representation in communication and resolution programs: what is the best model? Healthcare Prof Liability Rev. http://flbog.sip.ufl.edu/wp-content/uploads/2016/12/HPLR-Article003.pdf. December 2016. Accessed August 28, 2017.
40.
Maxwell  GM, Morris  A.  Family, Victims and Culture: Youth Justice in New Zealand. Eugene, OR: Wipf and Stock Publishers; 2010.
Original Investigation
November 2017

Patients’ Experiences With Communication-and-Resolution Programs After Medical Injury

Author Affiliations
  • 1Faculty of Law, University of New South Wales, Sydney, Australia
  • 2School of Population and Global Health, University of Melbourne, Melbourne, Australia
  • 3Stanford Law School, Stanford University, Stanford, California
  • 4Department of Health Research and Policy, Stanford University School of Medicine, Stanford, California
JAMA Intern Med. 2017;177(11):1595-1603. doi:10.1001/jamainternmed.2017.4002
Key Points

Question  Do patients’ and families’ experiences with communication-and-resolution programs suggest aspects of institutional responses to injury that could better promote reconciliation after medical injuries?

Findings  This interview study of 40 patients, family members, and hospital staff found that patients have a strong need to be heard after medical injury that is often unmet. Although 18 of 30 patient and family participants (60%) reported positive experiences with communication-and-resolution programs overall and continued to receive care at the hospital, they reported that hospitals rarely communicated information about efforts to prevent recurrences.

Meaning  Opportunities are available to provide institutional responses to medical injuries that are more patient centered.

Abstract

Importance  Dissatisfaction with medical malpractice litigation has stimulated interest by health care organizations in developing alternatives to meet patients’ needs after medical injury. In communication-and-resolution programs (CRPs), hospitals and liability insurers communicate with patients about adverse events, use investigation findings to improve patient safety, and offer compensation when substandard care caused harm. Despite increasing interest in this approach, little is known about patients’ and family members’ experiences with CRPs.

Objective  To explore the experiences of patients and family members with medical injuries and CRPs to understand different aspects of institutional responses to injury that promoted and impeded reconciliation.

Design, Setting, and Participants  From January 6 through June 30, 2016, semistructured interviews were conducted with patients (n = 27), family members (n = 3), and staff (n = 10) at 3 US hospitals that operate CRPs. Patients and families were eligible for participation if they experienced a CRP, spoke English, and could no longer file a malpractice claim because they had accepted a settlement or the statute of limitations had expired. The CRP administrators identified hospital and insurer staff who had been involved in a CRP event and had a close relationship with the injured patient and/or family. They identified patients and families by applying the inclusion criteria to their CRP databases. Of 66 possible participants, 40 interviews (61%) were completed, including 30 of 50 invited patients and families (60%) and 10 of 16 invited staff (63%).

Main Outcomes and Measures  Patients’ reported satisfaction with disclosure and reconciliation efforts made by hospitals.

Results  A total of 40 participants completed interviews (15 men and 25 women; mean [range] age, 46 [18-67] years). Among the 30 patients and family members interviewed, 27 patients experienced injuries attributed to error and received compensation. The CRP experience was positive overall for 18 of the 30 patients and family members, and 18 patients continued to receive care at the hospital. Satisfaction was highest when communications were empathetic and nonadversarial, including compensation negotiations. Patients and families expressed a strong need to be heard and expected the attending physician to listen without interrupting during conversations about the event. Thirty-five of the 40 respondents believed that including plaintiffs’ attorneys in these discussions was helpful. Sixteen of the 30 patients and family members deemed their compensation to be adequate but 17 reported that the offer was not sufficiently proactive. Patients and families strongly desired to know what the hospital did to prevent recurrences of the event, but 24 of 30 reported receiving no information about safety improvement efforts.

Conclusions and Relevance  As hospitals strive to provide more patient-centered care, opportunities exist to improve institutional responses to injuries and promote reconciliation.

Introduction

The misery of medical malpractice litigation for all involved1-3 has made hospitals keenly interested in resolving medical injuries with patients before claims are filed. Among the strategies receiving attention are communication-and-resolution programs (CRPs), in which hospitals disclose adverse events, investigate, apologize, explain what happened, and when appropriate, proactively offer compensation.4-6 Several reports suggest that CRPs can improve patient safety and reduce liability costs7-9; however, some commentators question whether they treat patients fairly.10,11

The literature about the needs of injured patients highlights that poor responses from health care providers can exacerbate the psychological, physical, and financial effects of adverse events.12,13 Researchers have occasionally described patients’ experiences of medical injuries, highlighting that institutions’ responses frequently fail to meet expectations.14,15 Applying these findings to CRPs is challenging, however, because the results “lack the granularity necessary to identify specific improvements” to serve the needs of the patients.16(p2)

Despite investment by the Agency for Healthcare Research and Quality in disseminating the CRP model,17,18 patients’ experiences with CRPs have not been investigated. Such research presents challenges19; hospitals worry that asking patients about their experiences could provoke distress or lawsuits. The resulting knowledge gap impedes development of patient-centered responses to medical injury.

Through interviews with patients and others, we explored what hospitals need to do to promote reconciliation after injury, what existing CRPs are doing well, and what hospitals could do better. We define reconciliation as engaging with patients and families about an unexpected outcome of care and offering remediation, with the goals of acknowledging and redressing emotional, physical, and financial harm; expressing an ethic of continuing care for the patient; and restoring trust.16

Methods
Sites

We conducted interviews at Stanford University Medical Center, Stanford, California; Baystate Medical Center, Springfield, Massachusetts; and Beth Israel Deaconess Medical Center (BIDMC), Boston, Massachusetts (Table 1). These academic medical centers were selected because they operate CRPs that maintain patient contact information. Baystate Medical Center and BIDMC collaboratively implemented similar CRPs20 and were treated as a single unit of analysis. The study was approved by the institutional review boards of Stanford University, Baystate Medical Center, and BIDMC, and all participants gave written informed consent.

Key Informants

We recruited injured patients or their family members for key informant interviews, along with administrators and clinicians involved with the CRPs. Patients and families were eligible for participation if they had experienced a CRP, spoke English, and could no longer file a malpractice claim because they had accepted a settlement or the statute of limitations had expired. The last criterion addressed hospitals’ concerns about prompting lawsuits. The focus of this study was the experiences of patients and families with CRPs. Therefore, we primarily recruited patients and families rather than administrators and clinicians.

The CRP administrators identified hospital and insurer staff who had been involved in a CRP event and had a close relationship with the injured patient and/or family. The administrators identified patients and families by applying the inclusion criteria to their CRP databases. Family members were invited if the patient was deceased or a minor. Hospitals sent the study invitations, which stated that external researchers were conducting the study and allowed key informants to choose whether to share interview transcripts with CRP staff.

Interviews

Interviews were semistructured and used an interview guide informed by a prior study of injured patients from New Zealand (NZ).16 Questions focused on the patient’s injury experience, the hospital’s response, and relationships between patients and individual clinicians as well as hospitals after the injury.

One of us (J.M.) conducted the interviews from January 6 through June 31, 2016. Interviews with staff and insurers lasted 45 to 90 minutes. Interviews with patients and families lasted 60 to 180 minutes, at the key informant’s discretion. Eleven key informants chose telephone interviews and 29 chose face-to-face interviews at their home or workplace. Interviews were audio recorded and transcribed.

Data Analysis

Data were analyzed following the principles of grounded theory using NVivo (version11; QSR International).21 Using transcripts from the first 6 interviews, 2 of us (J.M. and M.B.) used thematic content analysis21 to independently identify the main themes, which formed the basis of a coding scheme. The 2 coding trees were discussed in detail, and any differences were resolved by negotiated agreement. One of us (J.M.) then coded the remaining transcripts, generating initial theories and continually comparing them against newly coded data.22 For some questions, frequencies of responses were tabulated.

Results

We completed interviews with 40 of 66 identified informants (61%) (15 men and 25 women; mean [range] age, 46 [18-67] years). These participants included 30 of 50 invited patients or family members (60%) and 10 of 16 staff (63%).

Participant Characteristics

Distribution of the key informants across hospitals was fairly even (Table 2). Nearly all were working-aged adults, and 3 were parents of injured children. Staff respondents included 4 physicians and 6 CRP staff. Risk managers judged 27 of 30 patient injuries to have been attributable to error. Of the 30 patients and family members, 26 had received settlements, 1 had medical bills waived, and 3 had received no compensation.

Aspects of Hospitals’ Responses to Injuries That Promote Reconciliation
Initial Approach

Of the several features of CRPs that promote reconciliation revealed by the interviews (Table 3), 29 patients or family members reported that the hospital’s initial approach after the injury set a tone that heavily influenced further interactions. When the approach was mishandled, hospital staff struggled to remediate the strain that ensued. Four elements were particularly important for making a successful approach.

First, 22 of 30 patients and families wanted the hospital’s first contact after the initial disclosure conversation to be by letter or email rather than telephone. Written contact felt less intrusive, provided space to process the information, and allowed patients and families to contact staff when they believed they were ready.

Second, 19 of 30 patients and families highlighted the importance of physical privacy in the aftermath of injury, which was scarce for hospitalized patients. One patient reported the following interaction:

The risk management people came to see me….There was a patient in the bed opposite me who was trying to pull his tubes out, so there was a swarm of nurses around that bed.…It was just noisy chaos....It’s not a conversation about the weather, you know; it’s…very upsetting.

Private space was important for the sensitive discussions and for the emotional response. Respondents suggested that hospitals provide patients with a private room at no cost.

A third suggestion was to have someone with a role in patient services or safety and quality communicate with the patient or the family after the initial disclosure. Nineteen of 30 patients and family members commented that outreach from risk management made them suspicious about the hospital’s intentions. They questioned whether CRP staff “were really there to help the patient or just limit their liability.”

Fourth, all respondents (patients, family members, and staff) stressed the importance of having the right people present for the early disclosure conversation(s), including the attending physician. Patients were unsympathetic to excuses, such as “he is not a people person” or “he is too traumatized to talk to you.” Seven of 10 staff respondents also recollected that the conversations that went poorly were those in which the involved clinician was absent. One reported, “I hear things like ‘I almost wanted to come and bring the money back…because to this day, I still have not heard from that doctor.’” Eleven patients and family members mentioned that social workers should not be part of initial conversations because they cannot answer medical questions, and their presence triggered fears that the patient had died.

Communication Practices

Participants mentioned several communication practices that facilitated reconciliation. First, patients and families needed to be heard during disclosure discussions—not just receive information. They wanted clinicians and CRP staffers to listen attentively without taking notes, interrupting, or asking that patients confine themselves to clinically relevant information.

Second, 35 of 40 participants said that plaintiff’s attorneys can be useful during the CRP process, to provide support and help ensure that patients are treated fairly. Eight patients and family members received attorney advice or representation, and 18 of the 22 who did not wished they had. The CRP staff and physicians were less uniformly enthusiastic about plaintiff attorneys than patients and families; one stated that attorneys may be a “blessing or a curse,” and others distinguished between good attorneys who understood CRPs and others who were less knowledgeable. However, most staff endorsed plaintiff attorney involvement. As one noted, CRPs are sometimes criticized for trying to “cheat the patient out of his legal right or entitlement,” and that having compensation offers evaluated by attorneys reassures everyone. It “makes us feel better,” she continued, and “We’ve had attorneys say to the patients, ‘No, that’s fair, what you are being offered.’ And it makes them feel better.”

Participants described the following specific attorney practices that facilitated reconciliation: (1) allowing patients to tell their story, which had therapeutic value; (2) avoiding an adversarial posture during discussions with the hospital; and (3) asking patients about the outcomes that they hoped for, including the relationship that they wanted with the clinician going forward. One patient credited these practices with enabling him to regain trust in clinicians who he had previously viewed as “evil.”

Third, 28 of 30 patients and family members reported that they “hate that word, resolution,” and 23 of 30 preferred an alternative such as “reconciliation.” A patient explained, “It’s not resolved, because I’ve lost a loved one.” Participants in the prior study of injured patients in NZ16 also disliked references to “resolution.”

Relaying Safety Information

Although all 10 hospital and insurer staff said they told patients and families about efforts undertaken to prevent recurrences of the event, 24 of 30 patients and family members complained that this had not occurred. One family member recalled, “The hospital administrator risk guy…said, ‘We’re doing a full report on this. We’ll give it to you before you leave the hospital’.…We never got anything. That was very disappointing.” For many patients and families, omitting safety information impeded reconciliation: “It’s not resolved because I don’t know if there was change.” To ensure that this loop is closed every time, hospitals should document follow-up items promised to patients and review the list when the incident file is closed.

Compensation

Of 27 patients and family members who reported that they received compensation, 16 felt satisfied with it. Those who found it to be inadequate also described dissatisfaction with the overall communication process.

Participants identified the following 2 elements of the compensation process that contributed to successful reconciliation: proactive payment and a personal touch. Twenty-two of 30 patients and families experienced financial stress after the injury; thus, rapid compensation was critical. Patients wanted hospitals to inquire about looming bills, especially for low-income families, and offer help with them.

A gap occurred in perceptions about how proactive hospitals’ offers of compensation were. The CRP staff said their philosophy was, “Don’t wait for the demand, present the offer.” However, 17 patients and families wished that the offer had come sooner without their having to specifically ask for compensation. When the offer was proactive, patients expressed appreciation; for instance, “They said, ‘I know you are out of vacation time, you’re losing your pay…we are going to buy you back [vacation] time.’”

Twenty-six patients and families discussed the need for a personal touch to ensure a humanized compensation process. One recommended practice was conducting face-to-face meetings or home visits, rather than using letters or email, after the initial written communication. Another was keeping communications nonadversarial. Some CRP staff garnered more positive reviews than others. For example, 1 patient described her compensation negotiations as “breaking the illusion that we’re in this cooperative, collaborative process together” because when communication turned to money matters, “the iron fist came out of the velvet glove.” A parent reported that they “did not even make an offer.…they were so frugal and so aggressive with their mediation.” Such experiences compounded patients’ sense of victimization. Finally, participants emphasized that compensation discussions must be emotionally intelligent and compassionate.

Emotional Needs of Affected Children

Although few of the injuries in our sample involved minors, comments from parents of injured children and from 1 young woman injured at 14 years of age revealed frustration at the inattentiveness of the CRP process to children’s needs. For example, the adolescent believed that she should have received an apology and been given a chance to express her feelings; the brother of an injured patient had wanted to share how the injury had affected him.

Patients’ Overall Experiences

Based on an overall review of the transcripts, the CRP experience was positive overall for 18 of 30 patients and family members. For those who were dissatisfied, the wider process aggrieved them, not just the compensation aspect. Only 2 respondents characterized the programs as unfair.

Preserving the Therapeutic Relationship

One marker of the success of CRPs is patients’ reported satisfaction with the process; another is whether they are willing to receive care at the hospital afterward. Eighteen patients and family members said they did (or would) receive ongoing care there. Some reasoned that errors can occur anywhere; others credited the CRP with restoring their confidence. One explained, “I had trusted [the hospital]....But I could tell that the doctor felt really, really bad. They treated me real nice.… I continued on with [the hospital].” All 8 patients and family members with attorneys chose to receive ongoing care at the hospital, and some specifically credited their attorney for facilitating the reconciliation. Among the 12 patients and family members who discontinued the therapeutic relationship, the main reason was that the hospital had not communicated any patient safety efforts.

Discussion

This exploratory project is the first, to our knowledge, to investigate patients’ and families’ experiences of CRPs. The key informants’ accounts revealed several recommendations for hospitals’ responses to patients and family members affected by medical injuries (Table 4). Our findings suggest some practices that serve patients’ needs.

Consistently Communicate Patient Safety Efforts

Patients and families should be told at the conclusion of the investigation what, if anything, the hospital will do to prevent recurrences. Our findings, along with other research,23-26 establish that safety improvement is a central concern for injured patients and that failure to communicate safety efforts exacerbates the harm. Therefore, the recommendation to consistently communicate patient safety efforts is well established and essential to undertake.

Although staff in our study claimed that they communicated safety efforts, accounts from patients and families suggest that this communication is sometimes overlooked. Hospitals may be concerned that acknowledgment of systemic weaknesses could expose them to legal action. However, our study and others27-30 suggest that failing to communicate efforts to prevent recurrences may motivate patients to sue. Other barriers to communicating safety efforts are that the event may not have been preventable31 or no remedial actions could be identified. Effective CRPs should help patients and family members understand these realities. They need to hear that hospitals have taken their experience seriously and made diligent efforts to determine whether care can be made safer. Hospital representatives can also talk about “what we have learned” from the event, because some type of learning can always be identified from a patient’s adverse experience.

Get the Right People in the Room

Consistent with the recent study of the needs of injured patients in NZ16 and other prior research,19 all patients and family members in our sample reported a strong need to hear directly from the person responsible for their care. Therefore, the recommendation to strongly encourage the attending clinician to lead the initial disclosure conversation should be considered as essential practice.

Patients and family members had negative reactions to assertions that the clinician was not good at difficult conversations or too upset to talk, and they did not believe that the presence of a division chief or an offer of compensation was an acceptable substitute. Although patients and family members occasionally mentioned other clinicians, such as social workers, their primary concern was that the attending physicians should be involved in the reconciliation process.

Two measures may assist when tension exists between the patients’ desire to talk to the responsible clinician and their desire to talk with persons with high emotional intelligence. First, prior research and expert recommendations suggest that providing disclosure training or “just-in-time” coaching can improve the prospects for successful dialogue.32,33 Second, hospitals can remind clinicians that their most important role in these conversations is to listen. The recent report about injured patients in NZ16 revealed the patients’ strong desire to be heard.34 In addition, the literature on narrative and restorative competency confirms that listening to patients’ stories without interrupting plays a critical role in fostering understanding and restoring trust.35-38 Therefore, creating space for injured patients and families to be heard should be considered as an essential practice.

Patients’ and families’ accounts also reveal a desire to have a skilled support person, such as a patient advocate or attorney, present during conversations about the adverse event. Although only 8 patients and family members in our study had attorneys, they all reported positive experiences, and most of those without attorneys wished that they had obtained representation. The CRP leaders also increasingly recognize the value that the right kind of attorney can add to the process.39 Such attorneys ensure that patients are treated fairly,10,11 and they may facilitate restoration of the therapeutic relationship by asking the right questions when families are overwhelmed and provide another outlet for patients to be heard.

Connecting patients with attorneys who excel in these roles is challenging.4,39 When an adverse event is not attributable to error, CRPs do not compensate the patient; thus, no pool of resources is available to pay the attorney. Hospital referrals to attorneys present a conflict of interest. However, CRPs can partner with attorney organizations to provide education on the CRP approach and develop a list of qualified, interested lawyers.

Anticipate Families’ Immediate Financial Needs

Our findings, along with recent research,4,23 illuminate the importance of institutions and insurers offering financial reparation to injured patients and families. In our study, 22 of 30 patients and family members reported financial stress in the aftermath of error. Bills that were due while the patient recuperated were a major concern, and patients expressed frustration that the hospital had not anticipated that they would need immediate relief while their case was evaluated. The CRP staff thought that they made proactive compensation offers, but to families, these offers did not come quickly enough.

In offering compensation, CRP representatives must keep the tenor of communications collaborative. Face-to-face communication during negotiations is desired by patients and may help preserve the right tone.

Ask About Involving Children

The small sample of cases (n = 3) in our study that involved injured children revealed some provocative findings. Children who experience medical errors or whose siblings or parents do may want to be included in communications about what happened. Hospitals should consider asking parents whether and how they think their children should be included. Models for family conferences can be found in the criminal justice domain, where family members of victims are invited to participate in reconciliation meetings with offenders.40 More research is required before robust recommendations about children’s involvement can be formulated.

The Value of Small Gestures

Other, small gestures can make a difference to families coping with medical injuries. The following 5 practices are supported by our interviews: (1) asking patients what form of communication (telephone, letter, or face to face) they prefer after the initial disclosure conversation, (2) giving injured patients a private room for the remainder of their stay, (3) using the term reconciliation instead of resolution, (4) asking patients a few months after the reconciliation process concludes whether they wish to provide feedback, and (5) reaching out to patients on the anniversary of the event to update them on what the hospital is doing to improve safety and assure them that they have not been forgotten.

Limitations

The primary limitation of our study relates to generalizability. Although well suited to yield insights about difficult CRP cases, our sample is not representative of all CRP events. Most of the patients and families that we interviewed experienced medical errors, but only a minority of all CRP events involved error. Furthermore, our hospitals restricted the sample to patients who could no longer bring a malpractice claim because they had already settled a claim or because the statute of limitations had expired. Patients who experienced adverse events not due to error or whose injuries occurred more recently might have answered interview questions differently. We also cannot rule out selection bias; hospitals may have selected patients who they thought were satisfied with how they had been treated. However, interview responses did not fit this profile. Finally, selective recall may have affected key informants’ reports.

Conclusions

As hospitals strive to provide more patient-centered care, opportunities exist to improve the care that is provided after an adverse event. Even in hospitals with deep commitments to operating CRPs that serve patients’ needs, only 18 of 30 patients and family members reported positive overall experiences. The CRP movement is young with much room to grow. Listening to patients illuminates the way forward.

Back to top
Article Information

Corresponding Author: Michelle M. Mello, JD, PhD, MPhil, Stanford Law School, Stanford University, 559 Nathan Abbott Way, Stanford, CA 94305 (mmello@law.stanford.edu).

Accepted for Publication: June 27, 2017.

Published Online: October 9, 2017. doi:10.1001/jamainternmed.2017.4002

Author Contributions: Drs Moore and Mello had full access to all the data in the study and take responsibility for the integrity of the data and the accuracy of the data analysis.

Study concept and design: All authors.

Acquisition, analysis, or interpretation of data: All authors.

Drafting of the manuscript: Moore.

Critical revision of the manuscript for important intellectual content: All authors.

Obtained funding: Moore.

Study supervision: Bismark, Mello.

Conflict of Interest Disclosures: Dr Mello reports receiving grant funding from Beth Israel Deaconess Medical Center and Baystate Health for other evaluations of their communication-and-resolution programs and from The Risk Authority for a project on an unrelated topic. No other disclosures were reported.

Funding/Support: This study was supported by The Commonwealth Fund, a private independent foundation based in New York City.

Role of the Funder/Sponsor: The sponsor had no role in the design and conduct of the study; collection, management, analysis, and interpretation of the data; preparation, review, or approval of the manuscript; and decision to submit the manuscript for publication.

Disclaimer: The views presented herein are those of the authors and not necessarily those of The Commonwealth Fund, its directors, officers, or staff.

Additional Contributions: The authors thank the study participants for sharing their experiences; Beth Israel Deaconess Medical Center, The Risk Authority, and Baystate Health for facilitating access to participants; and participants in the Massachusetts Alliance for Communication and Resolution Following Medical Injury for thoughtful comments on an earlier draft of the manuscript.

References
1.
Bismark  M, Dauer  EA.  Motivations for medico-legal action: lessons from New Zealand.  J Leg Med. 2006;27(1):55-70.PubMedGoogle ScholarCrossref
2.
Atiyah  P.  The Damages Lottery. Oxford, England: Hart; 1997.
3.
Studdert  DM, Mello  MM, Brennan  TA.  Medical malpractice.  N Engl J Med. 2004;350(3):283-292.PubMedGoogle ScholarCrossref
4.
Mello  MM, Senecal  SK, Kuznetsov  Y, Cohn  JS.  Implementing hospital-based communication-and-resolution programs: lessons learned in New York City.  Health Aff (Millwood). 2014;33(1):30-38.PubMedGoogle ScholarCrossref
5.
Mello  MM, Boothman  RC, McDonald  T,  et al.  Communication-and-resolution programs: the challenges and lessons learned from six early adopters.  Health Aff (Millwood). 2014;33(1):20-29.PubMedGoogle ScholarCrossref
6.
Collaborative for Accountability and Improvement. Communication and resolution programs: what are they and what do they require? http://communicationandresolution.org/communication-and-resolution-programs. Accessed November 14, 2016.
7.
Boothman  RC, Imhoff  SJ, Campbell  DA  Jr.  Nurturing a culture of patient safety and achieving lower malpractice risk through disclosure: lessons learned and future directions.  Front Health Serv Manage. 2012;28(3):13-28.PubMedGoogle Scholar
8.
Robeznieks  A.  Full disclosure first: alternative med-mal approaches show promise.  Mod Healthc. 2013;43(5):32-33.PubMedGoogle Scholar
9.
Lambert  BL, Centomani  NM, Smith  KM,  et al.  The “Seven Pillars” response to patient safety incidents: effects on medical liability processes and outcomes.  Health Serv Res. 2016;51(suppl 3):2491-2515.PubMedGoogle ScholarCrossref
10.
Teninbaum  GH.  How medical apology programs harm patients.  Chapman Law Rev. 2011;15(2):307-337.Google Scholar
11.
Doroshow  J. Patient safety takes a back seat, once again. Huffington Post. http://www.huffingtonpost.com/joanne-doroshow/patient-safety-takes-a-ba_b_4598745.html. Updated March 22, 2014. Accessed August 24, 2017.
12.
Iedema  R, Sorensen  R, Manias  E,  et al.  Patients’ and family members’ experiences of open disclosure following adverse events.  Int J Qual Health Care. 2008;20(6):421-432.PubMedGoogle ScholarCrossref
13.
O’Connor  E, Coates  HM, Yardley  IE, Wu  AW.  Disclosure of patient safety incidents: a comprehensive review.  Int J Qual Health Care. 2010;22(5):371-379.PubMedGoogle ScholarCrossref
14.
Vincent  CA, Pincus  T, Scurr  JH.  Patients’ experience of surgical accidents.  Qual Health Care. 1993;2(2):77-82.PubMedGoogle ScholarCrossref
15.
Southwick  FS, Cranley  NM, Hallisy  JA.  A patient-initiated voluntary online survey of adverse medical events: the perspective of 696 injured patients and families.  BMJ Qual Saf. 2015;24(10):620-629.PubMedGoogle ScholarCrossref
16.
Moore  J, Mello  MM.  Improving reconciliation following medical injury: a qualitative study of responses to patient safety incidents in New Zealand [published online March 9, 2017].  BMJ Qual Saf. doi:10.1136/bmjqs-2016-005804PubMedGoogle Scholar
17.
Agency for Healthcare Research and Quality. Request for task order: comprehensive patient safety and medical liability communication and resolution program educational toolkit. https://www.ahrq.gov/professionals/quality-patient-safety/patient-safety-resources/resources/liability/liability_initiative.html. Reviewed July 2015. Accessed March 3, 2017.
18.
Agency for Healthcare Research and Quality. Communication and optimal resolution (CANDOR) toolkit. https://www.ahrq.gov/professionals/quality-patient-safety/patient-safety-resources/resources/candor/introduction.html. Reviewed May 2016. Accessed October 11, 2016.
19.
Iedema  R, Allen  S, Britton  K,  et al.  Patients’ and family members’ views on how clinicians enact and how they should enact incident disclosure: the “100 patient stories” qualitative study.  BMJ. 2011;343(d4423):d4423.PubMedGoogle ScholarCrossref
20.
Mello  MM, Armstrong  SJ, Greenberg  Y, McCotter  PI, Gallagher  TH.  Challenges of implementing a communication-and-resolution program where multiple organizations must cooperate.  Health Serv Res. 2016;51(3)(suppl 3):2550-2568.PubMedGoogle ScholarCrossref
21.
Glaser  B, Strauss  A.  The Discovery of Grounded Theory. Chicago, IL: Aldine; 1967.
22.
Becker  H.  Tricks of the Trade: How to Think About Research as You’re Doing it. Chicago, IL: Chicago University Press; 1998.Crossref
23.
Hannawa  AF.  What constitutes “competent error disclosure”? insights from a national focus group study in Switzerland.  Swiss Med Wkly. 2017;147(1112):w14427.PubMedGoogle Scholar
24.
Wears  RL, Wu  AW.  Dealing with failure: the aftermath of errors and adverse events.  Ann Emerg Med. 2002;39(3):344-346.PubMedGoogle ScholarCrossref
25.
Manser  T, Staender  S.  Aftermath of an adverse event: supporting health care professionals to meet patient expectations through open disclosure.  Acta Anaesthesiol Scand. 2005;49(6):728-734.PubMedGoogle ScholarCrossref
26.
Wu  AW, McCay  L, Levinson  W,  et al.  Disclosing adverse events to patients: international norms and trends.  J Patient Saf. 2017;13(1):43-49.PubMedGoogle ScholarCrossref
27.
Vincent  C, Young  M, Phillips  A.  Why do people sue doctors? a study of patients and relatives taking legal action.  Lancet. 1994;343(8913):1609-1613.PubMedGoogle ScholarCrossref
28.
Gallagher  TH, Waterman  AD, Ebers  AG, Fraser  VJ, Levinson  W.  Patients’ and physicians’ attitudes regarding the disclosure of medical errors.  JAMA. 2003;289(8):1001-1007.PubMedGoogle ScholarCrossref
29.
Hickson  GB, Clayton  EW, Githens  PB, Sloan  FA.  Factors that prompted families to file medical malpractice claims following perinatal injuries.  JAMA. 1992;267(10):1359-1363.PubMedGoogle ScholarCrossref
30.
Beckman  HB, Markakis  KM, Suchman  AL, Frankel  RM.  The doctor-patient relationship and malpractice: lessons from plaintiff depositions.  Arch Intern Med. 1994;154(12):1365-1370.PubMedGoogle ScholarCrossref
31.
Thomas  EJ, Studdert  DM, Burstin  HR,  et al.  Incidence and types of adverse events and negligent care in Utah and Colorado.  Med Care. 2000;38(3):261-271.PubMedGoogle ScholarCrossref
32.
White  AA, Brock  DM, McCotter  PI, Shannon  SE, Gallagher  TH.  Implementing an error disclosure coaching model: a multicenter case study.  J Healthc Risk Manag. 2017;36(3):34-45.PubMedGoogle ScholarCrossref
33.
National Quality Forum. Safe Practices for Better Healthcare–2010 Update: A Consensus Report. Washington, DC: National Quality Forum; 2010.
34.
Acclaim Otago Inc. Understanding the Problem: An Inductive Analysis of ACC Appeals—Access to Justice for Injured New Zealanders. Dunedin, New Zealand: New Zealand Law Foundation; 2015.
35.
Charon  R.  Narrative medicine: attention, representation, affiliation.  Narrative. 2005;13(3):261-270.Google ScholarCrossref
36.
Brookbanks  W.  Narrative medical competence and therapeutic jurisprudence: moving towards a synthesis.  Law Context. 2003;20(2):74-94.Google Scholar
37.
Duncan  D. The narrative lawyer: exploring narrative competence in legal practice. In:  Therapeutic Jurisprudence: New Zealand Perspectives. Auckland, New Zealand: Thomson Reuters; 2015:21-44.
38.
Frank  A.  The Wounded Storyteller: Body, Illness and Ethics. Chicago, IL: University of Chicago Press; 1995.Crossref
39.
Van Neil  MB, DeVoe  T, Shah  R, Sands  K. Patient representation in communication and resolution programs: what is the best model? Healthcare Prof Liability Rev. http://flbog.sip.ufl.edu/wp-content/uploads/2016/12/HPLR-Article003.pdf. December 2016. Accessed August 28, 2017.
40.
Maxwell  GM, Morris  A.  Family, Victims and Culture: Youth Justice in New Zealand. Eugene, OR: Wipf and Stock Publishers; 2010.
×