Dr. Robert Wachter, Editor, AHRQ WebM&M: Tell us a little bit about your background.
Richard C. Boothman: All through my career as a trial lawyer, I wondered to myself what a tough way it is to resolve disputes. Interestingly, in my first trial I was representing a surgeon, and at the end of the 2-week trial, as the jury was filing out of the box and the lady who sued leaned around the podium and said to the surgeon, "If I had known everything that I heard in this courtroom I would never have sued you in the first place," I remember thinking that there's got to be a better way to handle this. That was the first time in 6 years she had spoken to a physician with whom she had a very intimate relationship before things went bad. So I suppose the seeds of what later became my career choices were planted early on.
RW: When you had that epiphany after that case with the surgeon—that there needed to be a different approach to disclosure—what was your view of what needed to be different in the system?
RB: It developed gradually, but relatively early on as a trial lawyer I started a practice of sending a letter back to my clients that I called a "litigation discharge summary." The letter would summarize the issues in the case and the course of the case, but then include recommendations at the end. Things like, you might think about x, y, and z, which might have avoided this lawsuit. What I found was a startling silence at the other end and even some resistance, where clients would literally tell me, "We hired you to handle the malpractice case. Thank you very much, but we didn't ask for any opinions about how we could change our clinical care, or whether we should have pursued peer review for this challenged doctor." I was startled by the psychological separation.
I've since come to realize that we may have made a Faustian bargain many years ago when medicine first started turfing these complex issues to a profession that is trained to fight. As a lawyer, I'm not trained to know right or wrong. I'm really trained to win the case, and the concept behind the American judicial system is that, with vigorous advocates on both sides, usually the truth will win out. When you think back to the idea of turfing these issues to lawyers before we even understand them, we got exactly what we bargained for—an adversarial system. Somewhere along the way it occurred to me that the open access to the courtroom is in some ways the crown jewel of our democracy, but we've perverted the purposes and created this as a first resort rather than the last resort it's intended to be. It's a decidedly expensive and risky way to resolve disputes that should be resolved, or attempted to be resolved, through other means.
RW: Why do you think the system evolved that way?
RB: It's complex, but to boil it down I believe that we're all hardwired to avoid confrontation. That's part of the fight or flight response. With health care providers of all stripes, you have a self-selected group that really doesn't like that kind of confrontation. It was handy and it was comfortable to be able to rid themselves of having to deal with that, at least in the acute phase. To be able to hold your hand up and say to somebody who's angry with you, "This is what I have insurance for, go talk to my lawyer." There are also some economic drivers to shift the financial risk and exposure of financial consequences to an insurance company rendered this a business decision and a piece of business overhead. Instead of worrying about the enormous verdict, they could just look at their insurance premium as a line item on their balance sheet and it became predictable. In the early days of my career, you didn't see very many catastrophic verdicts in medical malpractice. That's a relatively recent occurrence when you think back to the decades of malpractice litigation. It may have made sense to shift the financial risk and the insurance model back in the 1970s, but today the consequence of doing that has been significant. It divorced the accountability for the bad results from the clinicians who are really best situated to fix the problems that gave rise to the unanticipated outcome, and it foisted it to a profession that is built for fighting. We got just what we asked for, an adversarial process.
RW: So when you came to Michigan and proposed the way the system should work and it's fundamentally different—almost turned on its head—from the system that you're inheriting. How did people receive that?
RB: Well, I built on a lot of things that people before me had in place. I'd like to think what I accomplished was really a form of permission. It was not a hard sell. In the first month I was here, I was able to distill down to three simple principles, at least as far as its claims were concerned, what the university should be about. Oddly enough they were seen at the time as revolutionary, but I don't know anybody who can argue with them. They're very simply, if we hurt somebody through inappropriate medical care, it is the ethic and culture of this place to do our best to quickly make it right in a reasonable way—to apologize and compensate fairly and quickly. The second principle was actually more foreign to this place, and that was that we ask much of caregivers who work in an inherently risky environment with inherently risky modalities. They can't control all of the risk. In other words, caregivers can do all the right and reasonable things and still end up with unanticipated outcomes. We owe them support too. The situation I inherited when I came to the University of Michigan was that we were risk averse enough that we were even settling cases where we felt we did not make a mistake. So that second principle had to be that, where our care was deemed reasonable, where we did not adversely impact the outcome, our caregivers deserved our full support. The third principle, which was the most radical at the time, was by all means we should learn from our patients' experiences, we should learn from our mistakes, and infuse in our system those lessons learned as quickly as possible. Not wait the 2 to 5 years litigation can take to run its course and then put all the other interval patients at risk.
Those are the three simple principles: to compensate when we've acted badly, to support our staff when we've acted reasonably, and to learn from our experiences. Once I distilled those down to the three simple principles, it created constancy about how we were responding to these events. We weren't just reacting to some cases that posed big financial risks and other cases that didn't. We shifted it from a game mentality—that is we were no longer asking ourselves, "Can we win in court?" We were asking ourselves, "Did we make a mistake?" "Did we act reasonably under the circumstances?" That in itself was a big shift from litigation gamesmanship to a more fundamental question that I knew we could answer for ourselves. We didn't need a court to answer, "Was our care reasonable, and did it meet our standards under the circumstances?" Once you start taking control and feel that you're in control over that question, it actually brings a sense of calm and personal accountability, or institutional accountability, over these difficult situations. But even so we started small: one case at a time. I publicized the good results, both ways, the settlements that happened early and spared our doctors litigation, also cases where the patients finally were convinced that we didn't do anything wrong and we avoided a lawsuit that might have happened earlier.
RW: Was your theory in moving in this direction that not only was this the right thing to do but there would ultimately be economic advantages in it? Obviously the data has supported that notion, but I think for many people that was a big surprise.
RB: Actually, the cost savings were never a doubt in my mind. In fact, years later people were irritated with me because I did not compulsively keep metrics as is the habit in an academic institution. My feeling was that this was just common sense. I had no doubt that, even in the cases we had to settle by stepping up early and settling, I'd get a more favorable settlement and we would avoid the transactional costs. The counter-intuitive part was keyed to that second principle. It's quite common in litigation circles to see cases that are strong defense cases as cases we should still settle to avoid the attorney fees. Early on when we tried cases sometimes at a cost that was as much as three times what it would have cost to settle the case, that was a challenge to make that argument. That we have a large audience out there of plaintiff's lawyers and patients and consumers and even judges, and they need to see that we are acting in a principled way, even if it doesn't seem to make sense from a cost-effective perspective on that case. One of the early cases we tried was a case that ultimately I could have settled for $40,000 or $50,000 and it cost me three times that to try it. But, it was very important for us to make that point, not only to the plaintiff's bar that was watching, but also to our own staff that we would stand firm and not just succumb to the early easy business practice of expedient settlements.
RW: How do you figure out which bucket cases fall in?
RB: The vast majority of cases are shades of gray, very few are black and white, and that's been an interesting evolution. When we first started we often would ask ourselves, "Can we find experts to support the care that we rendered in the given case?" We quickly morphed into a more personal question, "Is this the care that we expected of ourselves under those circumstances?" And to understand that requires you to really understand the circumstances. Simply put, I want doctors to always wash their hands before they touch me, but if I come into the emergency room with a stab wound to my neck please don't stop at the sink, just get your hand over that bleeding. The circumstances matter and we had to work hard to figure that out. That was second nature to me as a trial lawyer with 20 years of experience. So I guess the short answer is that yes, they all have shades of gray, but it is in the nature of academic medicine to know what is expected and what is not expected under the circumstances.
It really isn't as hard as you might think to answer whether this is the care that we expect of ourselves or not. Do we always get it right? No, I've defended some cases that we probably shouldn't have defended and realized during litigation that we should settle. Have we settled cases that maybe we didn't need to? Yes, that's probably true too. But overall, it's quite dramatic when you look at the difference in our experience. Our director of risk management, Susan Anderson, created a graph that was very eye opening, even for me. Looking at cases that we settled over the last 10 or 15 years, we compared them by the number of cases that we have concluded our care was reasonable versus not; before 2001, more than 50% of the settlements were in cases that we believed we did not violate the standard of practice and yet we still settled those cases. There has been a complete flip since then. Today it's rare that we pay on a case we have concluded we did not violate the standard of practice.
What that translates to in my mind is two things. One is we have taken control over the quality of this dialogue for ourselves. We've said to the system, this isn't first about malpractice. This is about our own accountability, and we will stand firm both ways. That's important. We've also weeded out almost all of the cases that were brought formerly where we still thought our care was reasonable. We don't see those cases anymore because we've proactively talked to the patient, changed the nature of the quality of that dialogue, and we're avoiding the cases that might have been brought in the past.
Where we find ourselves is kind of interesting. When I started at any given time we had roughly 250 to 300 lawsuits, it would vacillate. Today we're down to 80 to 90, but we haven't broken below 80, and that's troubling to me. What we find is that in the majority of those cases, we believe we are at fault. So the next frontier is to start to take a hard look at those because we don't have excuses anymore. We can't blame the plaintiff's bar and we can't blame opportunistic patients. We ourselves have concluded that the residual cases, after we've pared away those groundless lawsuits, are really ours to deal with, and I think the single biggest benefit to a transparent and honest approach is that we've finally gotten rid of all of those excuses.
RW: How do you think about risk management and patient safety in terms of how they've acted with each other traditionally and what you're trying to do now?
RB: Well, it's actually fascinating and I am more invigorated than ever over this. Right now, we are asking this question: "What is it about the remaining 80 to 90 cases that we could have intervened in had we only asked the right questions or had we only paid attention to the right information?" We are now convinced that we're not sampling those pockets of information that every health system has but doesn't tap. A simple example is a comment that one of our surgeons made to me about 2 weeks ago. He said to me, "I was on faculty here 6 months, at only 6 months I could give you a short list of people I never wanted to be in an operating room with." That information is well known. We just need to make greater efforts to tap it and then act on it. Who are those people that everybody knows about who may be unsafe or may be challenged? Maybe we need to get our arms around them and make them safer. I think that's the next frontier. So what we've managed to do is eliminate the noise. If you think of it as a researcher might, we've eliminated all the variables, but we're down to the cases that are our responsibility. I'm confident we could cut this number yet again by a third, or even a half, just by asking questions that historically we've never asked.
RW: It's interesting when you talk about what the surgeon told you, it was not about, "Here's a system that's dysfunctional and needs to be fixed." It got more into the notion of individual quality or personal relationships, which is a harder nut to crack. So that surgeon says to you, "Here are people who everybody knows are unsafe." Play that forward, now you know that, what do you do?
RB: First of all, interestingly, getting the names is hard. In that conversation I slid a legal pad across the table and I said, "Write them down and I'll start looking at them," and he wouldn't write them down. There's a complex question about what to do next. First with the culture change: peer review, for instance, has traditionally meant that we wait until somebody bottoms out, until someone has become such an embarrassment or so utterly unsafe that we can't ignore it anymore, then we pluck them out and engage in a very messy and risky process of pulling their privileges or submitting them to a licensing board. That's our shame. We need to get out in front of these people before they become an embarrassment and before they hurt a lot of people. So we're doing a number of things here that are very exciting.
Dr. Skip Campbell [the Chief Medical Officer] has revolutionized peer review. He's made it relevant. He's made it embracing, not disciplinary. We are going to great lengths to identify those outliers based on provable metrics that are relevant to the specialty involved. Instead of seeing people as ultimately disposable, we're getting our arms around them and we're enrolling them in various programs to help them with communication skills or understand why they're challenged. The next frontier is various ways to take advantage of collections of information that we haven't historically tapped. So why not sample the residents quarterly in an anonymous way and just ask them, "What's on your mind? What are you worried about? Who are you worried about?" People won't report if they believe it will always be disciplinary. So we have to move this culture in tandem. We have to convince people that we care about them. We understand that sometimes good people can go astray a little bit, and we can get on top of those things and make them safer—not just dispose of them when they become an embarrassment. So sampling patients, sampling residents, sampling the nursing staff—you go to a floor and just ask, "What keeps you up at night?"
The one thing I would twist a little bit is that I think the notion that was very popular a few years ago—that we should not look at personal accountability but instead create a blameless culture—was misguided. Even beneath processes that are challenged are responsible individuals. If we change the feel of it from punitive to progressive, we won't feel so badly and we won't work so hard to avoid personal accountability. When there's a challenged individual, it's not just the individual who may have a problem, it may be the manager, division chief, or department chair who was well aware of that problem but did nothing. We need to understand these deeper root causes that just put a bandage over the visible problem. We're even revolutionizing our root cause analysis process here because it did not historically really get to the root causes. When a surgeon thinks that it's acceptable to do two surgeries at one time (notwithstanding the increased infection risk, the distraction, putting residents in situations that they're not well qualified for, or putting patients at risk), the root cause of that is probably a financial one. Maybe an eat-what-you-kill compensation system puts perverse incentives in front of people and cause them to take risks that they shouldn't be taking. We need to be robust enough to start asking those harder questions if we're going to make a difference in this last frontier.
RW: You're talking about tackling a lot of hot button issues: peer review, economic incentives that drive behavior, recasting the balance between no blame and accountability. How does the brand new risk manager at a 150-bed community hospital in Ypsilanti get this work done?
RB: That's an excellent question, and it's not easy. I do find myself saying things to people in positions of power every single day that they don't want to hear, and they don't always react very well to it. It really matters, institution to institution, how you go about it. There are probably a dozen different ways of approaching it. Moving first into a board of directors and acclimating top leadership to these issues is not a bad idea. But, as a young risk manager, you don't always have access to those people. Even I don't have access to those people. Often it takes champions and it takes a lot of champions. You have to have medical people like Skip Campbell who are equally fearless and not defensive. You can chip away at it with the return on investment arguments that are very easy to make. When I said that I started small, that's the first thing that I did. We handled the very first case in a very open way. I took the result of that case, which actually as it turned out the patient decided not only not to bring the claim but asked his lawyer in our presence to stop what he was doing and ask the very doctor we were talking to if he'd take him back as a patient. I told that story in 62 speeches that year. I think the stories are important. I think the return on investment analyses are easy to make and important to get out there. I think talking to leadership and making sure that you're not going to get your head handed to you the first time you propose something that sounds crazy is very important, and you've got to have some support. So it's a complex and not always easy thing to do.
RW: You're asking clinicians also to have a new set of skills and probably a new view of their role vis-à-vis patients when there's harm. As you say, part of the pathophysiology of the old system was that something nasty happens and as a doctor I just almost outsource what goes on to somebody else, and now you're asking me to own it, to probably apologize, to sit down with the patient and the family who have been harmed and have difficult conversations to work this thing through. How do you train me to do this so that it doesn't feel like I used to feel, which is that I just sort of want to wash my hands of the whole situation?
RB: I have two responses to that. Let me back up a little bit upstream and say that there's one other thing that I think we need to pay attention to if nationally we're going to move in this direction. I have an advantage that most don't have. I have this luxury to be able to say to a doctor no matter how professionally accountable they need to be, for the outcome that we are confronted with they don't face personal financial ruin. I can't imagine another profession in which the risks are inherent, not completely controllable by the person who might be a defendant in a courtroom, and yet the penalties can seem so draconian. I don't think we're going to fix this until we realize that we need to protect doctors. Hold them accountable but protect them from draconian penalties if we want to protect ultimately our patients and make them safer. That connection is not self-evident to a lot of people, but I think that's absolutely necessary. It's ridiculous to think that a doctor facing potential ruin will come unguarded and talk to the patient about what he or she might have done better and how they might have contributed to the injury. So we have to think about that in those terms.
Secondly, how do you handle this with physicians who may not have been trained to have these difficult conversations? Well, I personally am not an advocate of this notion that you can put somebody through a half a day seminar and then send them out, and in the heat of the moment when it happens to them 2 or 3 years later expect that they can handle these things themselves. I think that caregivers are too close, the emotions run too high, and the complex of emotions is too thick. I think they need some help. So even if it's a sole practitioner or someone in a private group just to think about this in advance. Create a relationship with perhaps a lawyer that you trust or somebody else that you trust to be a second set of eyes is absolutely essential. We created a wonderful in-house resource here with risk management that's available 24/7. Every one of our risk managers is a professional trained mediator. We put them through legal mediation training. They're all weathered, highly intelligent, and understand what they're doing. That resource is indispensable to our model. It can be reproduced in a private setting in all sorts of ways. When I was a defense lawyer I would have welcomed a doctor to call me up and say, "Would you be on call if I get into trouble? I just need somebody I trust who understands my ethics and understands what I want to do and can help guide me through this morass."
RW: What does the future hold in this area? Do you see any hope that there will be changes in the overall malpractice system and if so, what would you like to see happen?
RB: In two broad strokes, assuming that we have no changes to our present litigation system what I hope will happen (and I'm seeing this slowly) is that our present way of handling things is driven largely by fear. If we stand for anything, if we can contribute anything to the national dialogue, it should be that one can confront these honestly and with a high degree of accountability and not have the claims sky fall in on them. If we can start to ease the fear a little bit and openly, honestly in these dialogues, then we'll get to the real important point and that is patient safety. Ultimately it's not about claims at all, it's about making people safer. Secondly, in terms of litigation, I am not an advocate at all of the so-called no fault system. Historically tort reforms have meant making it harder to bring claims and making it less lucrative. I think we need to focus on making it less of a game. Right now there's a fundamental flaw in the way we do this. We pick a jury with absolutely no sophistication in these issues, and then we make it a battle of the experts and expect these people we put in the box to know who's telling the truth and who's not. That doesn't make any sense. We need to reinforce the judge's role as a gatekeeper, weed out junk science, make medicine realize that not looking at cases honestly has hurt the whole system, and tighten up expert witness requirements to get rid of the gamesmanship.
RW: Anything else you want to talk about that we haven't covered?
RB: I bristle at the headlines that say apology saves money because ultimately it's not about claims—it's really about patient safety. It's a happy coincidence that apology saves money but it's really about being safer, and that's what I hope to be communicating in this next frontier.