Interviews with Disclosure & Apology Leaders: Dr. Jean Martin
We are happy to continue our interviews with disclosure and apology leaders. Last month we had a great response to our first interview with Dr. Florence LeCraw. This month we are talking with Dr. Jean Martin, MD, JD, of COPIC Insurance Company.
Jean Martin is a physician and senior legal counsel with COPIC, a leading medical liability insurance provider. Dr. Martin worked with the Colorado Academy of Family Physicians and representatives of the Colorado Trial Lawyers Association to draft the bill creating the Colorado Candor Act. Dr. Martin joined COPIC in 2011 when it began working with Dr. Tim McDonald to educate some of its insured facilities on the Seven Pillars process. Seven Pillars provides a robust framework for addressing adverse outcomes. The Candor law facilitates engaging in the communication and resolution process defined in Seven Pillars. Colorado’s law is patterned after Iowa’s Candor law that passed in 2015.
The Candor approach can be used after any unanticipated outcome related to patient care that results in the death or physical injury of a patient. The Colorado Candor Act has a notice provision for patients and families entering Candor open discussions that advises them of their rights, including the right to be represented by legal counsel throughout the process. Candor communications and any offers of compensation do not constitute an admission of liability, are privileged and confidential, and are not admissible as evidence in any subsequent legal proceeding arising directly out of the incident. A provider or facility that agrees to engage in Candor discussions may investigate the incident, disclose the results to the patient, openly communicate the steps they will take to prevent future occurrences, and determine if an offer of compensation is warranted. The Candor process is provider-initiated after an unexpected outcome, so any compensation is not the result of a written claim and is not reportable as a malpractice settlement.
Sorry Works: What brought healthcare professionals (doctors, etc.) to the table on this legislation? And what (in your opinion) brought the personal injury bar to the table?
Dr. Martin: As a physician myself, I understand how guarded and measured our words are when speaking to a patient or family after an unexpected outcome, knowing that any statement could be used against us if there is litigation about the incident. The Candor law provides legal protections for Candor open discussions that removes this concern. We’ve understood from patient’s attorneys how much their clients want physicians to be open and candid in discussing what happened.
We’ve also heard from both attorneys and physicians that the reporting requirements for malpractice settlements deter providers from resolving these cases. Rather than addressing the issue with a patient, there’s a willingness to take a “deny and defend” approach. The Candor process is triggered after an unexpected outcome, however, and not a negligence claim so it does not result in a reportable judgment or settlement of a claim.
Sorry Works: The Colorado Candor Act became effective July 1, 2019. What has been the reaction among healthcare, insurance, and legal professionals in your state to the law? What about Colorado patients and families?
Dr. Martin: Most people had never heard of a communication and resolution (CRP) approach. Attorneys for some health care systems wondered why COPIC would ever pay compensation under Candor to a patient who hadn’t made a claim. Some defense counsel expressed concern that Candor discussions were a way for the patient’s counsel to have easy discovery of everything that happened and to then use that information against the provider in litigation. Other insurers and self-insured entities initially said they would advise against using the Candor approach. Some in the patient safety community expressed concern that the confidentiality provisions prevented patients from discussing their compensation, and that not reporting payments under Candor would allow potentially incompetent providers to continue to practice.
Many of these concerns have been allayed just by seeing the Candor process play out. Candor is completely voluntary and, even if the Candor process is initiated, any party can withdraw at any time and a patient can bring a lawsuit. All the Candor discussions and any offers of compensation would still be confidential and could not be brought into evidence in a lawsuit. We’ve seen defense counsel come on board realizing that transparency with patients will become the new standard going forward. Attorneys representing hospitals have found that many facilities are embracing some type of disclosure program and the Candor law encourages providers to participate. Attorneys representing individual providers have seen benefits if their clients participate in Candor open discussions even if they feel the error was on the part of the hospital or another provider. Their client’s discussions with the patient remain confidential and, if there is compensation, it would be conditioned on the patient signing a release of liability so the providers, including the client, couldn’t be sued. This is important because Candor works best if everyone involved in the patient’s care takes part.
For patients, we have stressed that confidentiality is meant to encourage providers to speak openly and candidly about what happened. This doesn’t prevent a patient from discussing the health care they received, however, including any information documented in the medical record.
From the standpoint of protecting the public, nothing in the Candor law prevents a patient who goes through the Candor process from filing a complaint with the relevant licensing board or health department. It doesn’t change the requirement of a hospital or practice to report adverse professional review actions based on the provider’s care. It also doesn’t prevent a health care entity from reviewing the provider’s care and taking any necessary action to address deficiencies.
We think some of these concerns are outweighed by the benefits we’ve seen for patients in both Iowa and Colorado. Patients can have an attorney present with them throughout the Candor process and to advise them about any offer of compensation. Patients can maintain their privacy, find out what happened, see what steps are being taken to prevent a similar outcome, keep their relationships with their providers if they choose to, and receive compensation in a timely manner. Patients can also choose to walk away from the Candor process at any time without waiving their right to bring a lawsuit.
The patient’s attorneys we worked with felt that it really helps patients and families to hear what happened and why it happened. Most important is just a simple statement that “I made a mistake. I am sorry.” It helps to hear that the provider and facility have investigated what happened and have identified ways to make sure it doesn’t happen again. One attorney said, “I cannot tell you how often people tell me, ‘I just want to make sure that this doesn’t happen to someone else.’” Another said regarding patients, “I am seeing huge sighs of relief that they may be able to sit down and talk in confidence with their doctor or hospital and vent and maybe get compensation without a long and painful lawsuit.” When patients initially hear that a doctor will not be reported under the Candor process, they’ve expressed concerns that the accident will go unnoticed and unaddressed. When it’s explained that the hospital or practice or doctor will still be addressing the problem or admitting the error, then they are interested in proceeding with the process. Patients just want mistakes to be addressed and prevented from happening again, and to be compensated fairly.
Sorry Works: What are the challenges and hurdles to climb with the Colorado Candor Act, and how are you and others in Colorado addressing these hurdles?
Dr. Martin: Our biggest challenge has been providing education about how to implement the law, especially where we are working with a provider or facility who has a different medical liability insurer.
A big advantage we have with the Candor law is that we can work with an individual provider or group practice to use this approach. Communication and resolution programs require time, education, and effort to put into place. For this reason, most programs are in academic settings or large health care systems. Because COPIC has a background in Seven Pillars, we have incorporated its elements into working with our insured providers. This includes promoting early reporting of unexpected outcomes, assisting with disclosure discussions, and having a Care for the Caregiver program to help providers through a difficult time.
Sorry Works: There are four states with 2nd generation apology laws -- MA, IA, OR, and CO -- with your state being the most recently passed legislation. How did Colorado's law build upon and even improve upon the laws passed by the other three earlier states?
Dr. Martin: Most of the changes we made were to fit within Colorado’s existing law. We added in the notice that patients may be required to repay medical and other expenses paid by a third party, e.g. medical liens. One important addition was including a provision that allows a health care provider or health facility that participates in Candor open discussions to provide de-identified information about an adverse health care incident to a nonprofit organization for use in patient safety research and education without waiving the Candor privilege. The Candor Institute has been created as such an organization.
Sorry Works: What advice would you have for other states contemplating passing a Candor law?
Dr. Martin: Candor is such a departure from “deny and defend” that the most important first step was making sure everyone in our organization agreed that bringing a Candor law was the right approach. One “safety valve” was that the Candor process is completely voluntary and that anyone can choose to withdraw at any time, including the providers. The second critically important step was having a stakeholder process to understand everyone’s perspective.
Even though everyone had different views about what they wanted (greater transparency, improved patient safety, fair compensation, fewer malpractice claims, etc.), it was helpful to keep the focus on doing what’s right for the patient and family as the one interest everyone had in common.