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One doctor’s take on malpractice policy that calls for disclosure, apology, and often a settlement

By Chelsea Conaboy

April 23, 2012

For many doctors, the initial reaction to being accused of making a medical error is the same, no matter the circumstances.

“The immediate response is to get angry,’’ said Dr. J. David Blaha, a professor and orthopedic surgeon at the University of Michigan Health System. “The immediate response is to say, ‘No I didn’t.’ ’’

It’s what happens next that matters, Blaha said.

At most institutions, hospitals and doctors put up walls, cutting off communication from patients in anticipation of a possible lawsuit. The process, Blaha said, automatically creates an adversarial relationship.

“You tend to demonize the patient because the patient who is complaining is pointing fingers at you, and the patient wants to say, ‘Those doctors are awful. They didn’t take care of me properly,’ ’’ he said.

The University of Michigan created a system a decade ago aimed at changing that. Staff were encouraged to disclose and discuss errors, offer patients an apology, and move toward a settlement, when appropriate. Seven Massachusetts hospitals, working with the Massachusetts Medical Society, announced last week that they would try a similar approach.

Orthopedic surgeons are among the medical specialists most likely to be named in a malpractice case. In a phone interview this morning, Blaha explained two cases in which patients at the university system were unhappy with the care they received under his supervision.

In one case, Blaha performed a hip replacement on a patient who had an “untoward result.’’ (Blaha said he could not provide specifics.) After a second surgery to deal with the complication, the patient said he thought Blaha had done something wrong. Blaha disagreed.

“We actually sat down in the same room and talked between the two of us,’’ he said.

The hospital’s risk management team looked at how the complication was managed at other hospitals and found that, while Blaha followed what the hospital system considered to be the standard of care, that standard was not on par with practices followed by hospitals elsewhere in the country. The health system offered the patient a settlement without going to court.

“At the end of the day, he’s satisfied. I’m satisfied,’’ said Blaha, who sits on the hospital’s medical liability review committee, which provides advice to hospital attorneys about whether a patient’s care was appropriate. The committee also reviews cases in which patients fall, receive the wrong medication, or experience other errors, to look for ways to avoid such events in the future.

In a second case, Blaha said, a man who had a double hip replacement felt afterward that his legs were the wrong length. Conversations with hospital staff — a chance to talk about his care and the outcomes — resolved his concerns. Those conversations took a couple of weeks, Blaha said. But if the case had become a lawsuit, it could have taken years.

The initiative in Massachusetts, called the “Road Map to Reform,’’ has its critics. Andrew Meyer, a malpractice attorney in Boston who represents patients, told the Globe’s Liz Kowalczyk last week that he is concerned that patients may get less than fair compensation.

But, he told Kowalczyk, “if a patient’s rights are not limited in any way, I have no issue with an attempt at early resolution. Cases just drag on for years.’’

Blaha said he thinks the Michigan approach should be more widely used.

“The litigation process does its best to make adversaries,’’ he said. “The big thing here is we try to get away from being adversaries.’’

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