The Nov. 24 issue of the prestigious New England Journal of Medicine included an article by Dr. David C. Ring, a surgeon at Massachusetts General Hospital, that might have made defense counsel cringe. In the article, Ring vividly describes how a series of personal and systemic mistakes led him to operate on the wrong arm of a 65-year-old woman. Through this disclosure, Ring hoped that others would learn from and avoid his traumatic mistake.

Although few physicians and hospitals are likely to adopt a program of publishing adverse events for public dissection, Ring’s story sheds light on the increasing recognition that hiding, denying and blindly defending claims of medical error are likely to encourage repetitive (and avoidable) errors in the long run and increase legal costs and payouts in the short run.

Why is disclosure of medical errors likely to reduce errors and malpractice costs? There are two main reasons. First, and as hoped by Ring, disclosure and discussion within a health care organization may be central to reducing medical errors. Contrary to common beliefs, most medical errors are not the result of a poor decision or single mistake by one person. Medicine today is much more complicated and requires choreography of multiple people and technologies.

Typically, errors arise from a breakdown of communication, coordination or safeguards, and reflect multiple missed opportunities to prevent mistakes (of either omission or commission). In the absence of disclosure and discussion, repetition of avoidable errors is inevitable. The difference between a culture of communication and one of egocentric silence can be the difference between a successful emergency landing in the Hudson River by Captain Chesley “Sully” Sullenberger and his crew and the flight that crashed on the way to Kennedy Airport because the co-pilot was reluctant to reiterate his alert that the plane was running out of fuel to the pilot.

Second, studies have shown that much, if not most, malpractice litigation results not from an alleged medical error but from insensitive and non-communicative dealings by health care providers with affected patients and their families after a problem arises. Most patients have little if any desire to sue their health care providers and, indeed, it has been reported that less than 2 percent of patients injured by medical errors do so.

On the other hand, patients expect four things in response to medical errors: an explanation of the cause, an apology, assurances that it won’t happen again and fair compensation. Absent disclosure and discussion, three of these expectations will be disappointed and replaced with frustration and anger. Perhaps recognizing these motives, a recent television commercial by a successful plaintiffs malpractice attorney said nothing about the harm caused by medical errors, but focused entirely on the “fact” that “the hospital won’t tell you what happened.”

One consequence of the growing recognition that disclosure and communication can reduce malpractice claims has been the adoption of “medical apology statutes.” Approximately 30 states (not including Pennsylvania) have adopted laws to prevent the use of apologies as an admission of guilt or liability. Most of the “apology” laws, however, provide immunity for “expressions of sympathy” and the like, but not admissions of fault. This tenuous distinction may, unfortunately, undermine the effectiveness of such laws in promoting frank communication.

At the federal level, Congress passed the Patient Safety and Quality Improvement Act (PSQIA) in 2005, which sought to encourage reporting and broad discussion of adverse public events, near misses and dangerous conditions by, among other provisions, establishing privilege and confidentiality protections for “Patient Safety Work Product,” which was defined to include information reported by providers to a “Patient Safety Organization” for purposes of reducing harmful incidents. The PSQIA, however, excludes protection for patient medical records, billing and discharge information, or any other original patient or provider information.

Despite the risk of admissions or tactical disadvantages in subsequent litigation, leading medical systems have adopted programs to disclose and discuss adverse medical outcomes with patients and their families. Although varied in detail, these programs include combinations of disclosure and acknowledgement, dialog, voluntary compensation in appropriate cases and vigorous defense of unmeritorious claims. Open disclosure and discussion of medical errors also promotes corrective or quality improvement initiatives.

Rather than invite a flood of costly claims, as some feared, such programs have, without exception and in addition to promoting improved quality and ethical delivery of care, reduced both the volume of litigated cases and size of payouts to claimants.

For example, since adopting a program to fully disclose medical errors, the University of Michigan Health System saw the number of new claims against it fall by half (despite an increase in clinical activity), the time for resolving claims drop from an average of 20.3 months to about eight months, and litigation costs also fell by half. The University of Michigan program, moreover, has received favorable feedback from physicians, malpractice attorneys and patients.

A more cautious, but nonetheless effective, means of promoting prompt communications with patients and their families about medical errors is to require or encourage mediation of potential claims. Mediation calls for a neutral person to facilitate discussions between the parties to assist them in reaching a mutually acceptable resolution. A mediator has no decision-making authority, and cannot impose binding decision on the parties.

Mediation can lead to negotiated settlements when direct negotiations between the parties would likely fail for a number of reasons. The parties themselves, for example, may have poor negotiating skills, unrealistic assessments of their cases, or too much anger to communicate with each other effectively. Equally important, mediation can help the parties agree on terms that could not be obtained in litigation, such as apologies, corrective programs or recognition. Even when mediation does not result in a complete settlement, it may enable the parties to narrow the scope of their dispute or decide upon expedited procedures for resolving remaining areas of conflict.

Mediation typically proceeds in three main stages. First, the parties (and their counsel) and the mediator convene in a joint session. After opening remarks by the mediators, the parties are given the opportunity to state their respective positions and objective for resolving the dispute.

Second, the parties separate and the mediator engages in shuttle diplomacy. The mediator will relay proposals and responses between the parties after helping them to frame their dialogue in a constructive manner. The mediator also may serve as an impartial sounding board and provide each side with a “reality check” as to their respective views. In addition, the mediator probes for common ground that may provide a basis for resolution.

Third, the parties and mediator will reconvene in a joint session to iron out final details of an agreement. If a full settlement has not been reached, the parties may nonetheless agree to remove certain of the issues from the case, to an efficient procedure for resolving remaining issues (in lieu of litigation), to exchange a limited range of information and thereafter to reconvene, and so on.

In comparison to medical apology statutes, mediation offers far greater assurances of confidentiality. Most states, including Pennsylvania, have adopted statutes that establish privileges and/or confidentiality for disclosures in mediation. Pennsylvania law provides, with some exceptions (related to threats, physical injury inflicted during mediation or fraud) “all mediation communications and mediation documents are privileged” and, therefore, such communications and documents are neither discoverable nor admissible into evidence at trial. In addition to statutory protections, confidentiality in mediation can be bolstered by contractual agreements prohibiting the use of information exchanged in mediation for any purpose other than the mediation itself. Moreover, the courts have aggressively protected the confidentiality of mediation sessions to encourage settlements.

Health systems that have adopted mediation programs include University of Pittsburgh Medical Center, Rush Medical Center in Chicago, and Drexel University Medical Center. Each of these systems have reported significant improvements in resolving claims and cost reductions. For example, from October 2004 through January 2008, UPMC resolved 90 percent of the 117 cases that entered its mediation program in advance of trial. Of those cases, 101 either settled during mediation or shortly thereafter. Rush Medical Center has reported a similar success rate for its mediation program and substantial savings in litigation expenses.

Of course, neither disclosure nor mediation is likely to reduce medical errors in the absence of follow-up to translate learning into practice. Indeed, a recent study noted that potential benefits of mediation of hospital medical errors may be diminished where physicians do not participate. But even reducing the number and duration of medical malpractice cases may alone help reduce errors. While some researchers found that malpractice litigation does not, as may be hoped, deter negligence, others have concluded that malpractice litigation itself may lead to medical errors because of the stress it creates for affected physicians.

Medical errors are a persistent and costly problem for both health care institutions and their patients. Although much is controversial about medical malpractice litigation, a couple of things are clear: it is a costly and ineffective means of promoting health quality. As shown by disclosure and mediation programs around the country, it is plainly time to encourage a different approach. •

Gary L. Kaplan is a member of the health care practice group of Thorp Reed & Armstrong in Pittsburgh and teaches health law at Heinz College, Carnegie Mellon University. He is the author of “The Executive Guide to Managing Disputes” (Beard Books 2009) and “The Law of Health Information Technology” (American Health Lawyers Association, forthcoming). He can be reached at gkaplan@thorpreed.com.