An Alternative to ‘Deny and Defend’?

Back Article Feb 5, 2019 By Steven Yoder

One area health system is among a small group of providers nationwide trying something different. In September 2014, Dignity Health implemented a system in four Sacramento-area hospitals designed to bring more satisfaction to patients and families after adverse medical events while boosting patient safety.

The approach traces its origins to events in 2002 at the University of Illinois Medical Center in Chicago. After two cases of serious medical error, hospital staff wanted to apologize to the patients’ families. They were told by leadership, “No way, we can’t do that, we’ll get killed in the newspapers, and we don’t have a process in place to do it,” says David Mayer, then a dean at the medical school and co-director of its patient safety center. One of those cases ended up in court, and after a three-year battle, the hospital came to a multimillion-dollar settlement the day before trial. It got wide attention in the media too. “[The hospital] tried to deny and defend for three years,” says Mayer. “Everything they were afraid would happen, happened.”

So Mayer and a few colleagues convinced the leadership to rewrite the script and devised a new approach, later known as “Communication and Optimal Resolution,” or CANDOR. After an unexpected medical outcome, the hospital promptly explains to patients and family members the facts that are known and keeps them apprised at every step of the investigation. The provider freezes all billing until the case is resolved, offers an apology where needed, and works with the patient and their legal counsel to agree on financial compensation where warranted. And it uses the case to improve patient safety.

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The results so far are promising. University of Illinois Hospital and Health Sciences System data show that after program implementation, the number of patient claims for financial compensation and lawsuits fell by more than 40 percent, liability payouts dropped by 54 percent, and the disclosure of unsafe conditions and “near misses” by hospital staff more than doubled.

“People think that all the plaintiffs care about is money,” says Donna Shestowsky, a UC Davis School of Law professor who studies alternative dispute resolution. “But when you actually look at what injured parties say, often what they really want is this idea of ‘I want to be heard’ or ‘I want an apology’ or ‘I want to make sure this doesn’t happen to anyone else again’ or ‘I want to know why this happened, what went wrong.’”

The CANDOR initiative led to a demonstration project by the federal Agency for Healthcare Research and Quality, and Dignity was one of three health systems in the country to test the approach in its Sacramento hospitals in 2014. Dignity Senior Vice President for Patient Safety Barbara Pelletreau says it’s still too early to report definitive outcomes. But they’ve seen enough anecdotal evidence that they’re rolling out CANDOR in all 35 system hospitals.

The CANDOR outcome data so far have convinced at least one California malpractice insurer to put money behind something similar. BETA Healthcare Group, based outside Walnut Creek, offers up to a 10-percent discount on premiums to its customers that implement a patient safety program based on the CANDOR model. Twenty-one BETA clients were participating as of November 2017.

There are cases in which despite a provider’s transparency, the two sides can’t reach a resolution. Mayer now works for a company that offers consulting to providers interested in CANDOR. “Look, there are still cases where we agree to disagree,” he says. “We still need defense attorneys to defend what’s appropriate.” But as the number of lawyers on the other side dwindles, alternatives like it may increasingly be the face of dispute resolution in health care. 

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