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[Special contribution] ‘It wasn’t about an apology; it was about asking a different question’
  • By Kim Hoh
  • Published 2019.10.29 14:43
  • Updated 2019.10.29 14:59
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Korea Biomedical Review publishes the contribution from Kim Hoh, Ph. D. and representative of THE LAB, based on his recent talk with Richard Boothman, J.D., the owner and principal of Boothman Consulting, former chief risk officer at University of Michigan Health System, and creator of the “Michigan Model.” KBR staff reporter Lee Han-soo arranged the text.—Ed.

Richard Boothman (left), owner and principal of Boothman Consulting, and Kim Hoh, founder of THE LAB, discuss how the Michigan Model was developed, during a recent table talk at Seoul Shilla Hotel.

In the 1980s Richard Boothman was a trial lawyer representing some of the biggest hospitals in the United States in malpractice suits. But the better he got in the courtroom, the more often he felt he was winning cases that he should not win. While hospitals were successfully litigating malpractice suits, the level of patient care involved in these problematic situations was not always high. Increasingly, he felt he wasn’t doing his clients any favors by hiding or defending care that was not good patient care.

Richard Boothman, J.D. started his legal career as a trial lawyer in 1980. After successfully working for a large trial law firm in the Detroit area, he opened his own firm, Boothman, Hebert & Eller, in 1989, which represented major hospitals in malpractice suits, including the University of Michigan hospital and Cleveland Clinic. For years, he had thought there should be a far better way to handle medical malpractice issues than “deny and defend.” One day in the spring of 2001 he got a call from the general counsel at the University of Michigan asking if he could help them find a new internal lawyer to oversee the malpractice side of the general counsel’s office. As Boothman reviewed the resumes, all from junior lawyers, he said to the general counsel, “Has it ever occurred to you that there is a radically different way of handling such cases?” He decided on the spot to take on the challenge himself. After the meeting, Boothman called his wife and partners and said, “I think I can put a new system in place in two years, and I would like to give it a try.” At this moment, what is now called the Michigan model was begun. The model has received international attention and been featured in various news media including the New York Times and academic journals including the New England Journal of Medicine and Annals of Internal Medicine. The Michigan model offers hospitals a very different way to approach malpractice concerns, their patients, and the evolution of their quality of care.

Boothman didn’t come back to his law firm after those two years. He worked for the University of Michigan Health System for 17 years as the Chief Risk Officer; he retired from the hospital in 2018 and founded Boothman Consulting to help other health systems, governments, and insurance companies to make a transition to a better way of responding to patient injuries and managing malpractice cases.

The Michigan model replaces the deny-and-defend approach in which hospitals immediately deny any responsibility in unfortunate patient outcomes and defend their innocence at all costs, to the detriment of hospital-patient relationships, the hospital’s relationship with its own medical staff, the hospital’s efforts at clinical improvement, and the hospital’s pocketbook. The Michigan model takes a very different tack.

More than 10 years ago, I received a request from a medical association in Korea to write a short article on how to manage medical malpractice. Even though I did not have experience with medical malpractice management, they valued my experience as a corporate crisis management consultant. During my research for that article, I became interested in the Michigan model, which was simultaneously based on transparent communication and saved hospital money and time spent on medical malpractice management. In particular, I noted how a hospital using this model delivered apologies to the patient or patient’s family—proactively. My discovery of the Michigan model was a major reason I chose public apology as a crisis communication tool for my dissertation.

Since that time, the Michigan model has been widely considered a success case for apologies in crisis situations. Ten years later, I met the person who originated the model, and through my interview with Boothman, I realized that the apology itself is not the core element. What was Boothman thinking when he initiated the model nearly 20 years ago? What were the differences between the Michigan model and traditional approaches? What is the future of this model? When Boothman visited Seoul for the 10th Korean Healthcare Congress in April 2019, I sat down with him for a two-hour interview. It turns out that the essence of the model is not about an apology—it’s more profound and interesting than that. Talking to him broadened my perspective on the model specifically and crisis communication in general.

One question, three principles, nine elements = the Michigan Model

One question. Imagine that you are in the top management of a hospital. You and your colleagues are called for a meeting to discuss how the hospital should respond to a potential malpractice case in the hospital—an incident has just occurred. Imagine that your team can focus on just one question to discuss. What would it be? What should it be? My top-of-mind question would be: Are we legally and medically responsible?

Richard Boothman, founder of Boothman Consulting

Surprisingly, according to Boothman, at the University of Michigan Hospital, the key question is, “Are we proud of this care?” To me, this was the biggest differentiator of the model from others. I would call it a mission-critical question, as all hospitals aim to deliver the best possible care for the patients, at least as put forth in their mission statements. Asking whether we are proud of the care when something unfortunate occurs in a patient’s treatment is a much higher bar than the more typical question, skipping over the question of responsibility, of “What are the risks for the hospital due to this potential case?”

Another element of the Michigan model has to do with who discusses the question “are we proud of this care?” At the University of Michigan hospital, when a potential medical malpractice case arises, a large committee of medical professionals, chaired by the Chief Medical Officer, convenes to discuss the clinical questions and then takes an electronic vote. If the committee concludes that the hospital did something of which it is not proud, they would go directly to the victim’s family and discuss the compensation. They would then present the proposal for compensation to the claims committee, which has representation from the hospital’s leadership, including the financial offices, for approval. It is a very carefully designed decision-making structure.

In a more traditional way of handling such a situation, and one that’s more efficient from a time standpoint, the Chief Risk Officer would typically assign the case to a trial lawyer for investigation and defense. Eventually, after a very expensive period of pre-trial litigation, he or she would consider whether the case should be settled, and only then would they engage in negotiations with the patient’s or family’s lawyer. The decision would be made against litigation considerations, not the quality of care. However, in this case, the medical community of the hospital may not buy into the decision, dismissing it as a lawyer’s decision. Therefore, to make the model and its implementation effective, at the University of Michigan hospital the question of whether compensation is appropriate is made largely not by lawyers but by medical professionals. By designing the decision-making structure in this way, medical staffers have ownership of and commitment to the decision.

Three principles. Almost immediately after joining the University of Michigan in July 2001, Boothman outlined three principles on the wall of the lawyer’s conference room at the hospital, paraphrased here.

First, if we injured patients with medical care that we are not proud of, it is our ethic that we will step up, do our best to make it right, and be honest with the patients.

Second, the focus of the question “are we proud of this care?” is on the process—the care itself—not on the outcome. All medical treatments have risks. Sometimes, even though the medical staff does everything possible in their care of the patient, bad outcomes happen. The second principle says that if the care was competent and responsible, the hospital will do its best to avoid litigation, though it will not sacrifice its principles and will vigorously defend its case if litigation is necessary.

The third principle says that the hospital will learn from every one of its patients’ experiences. After joining the University, Boothman was astonished to learn that the hospital’s patient safety and quality department and the risk management department did not share and learn from one another because that connection is critical to reduce potential medical malpractice and improve the quality of care.

I was curious how Boothman was able to develop the principles so early, soon after joining the hospital. He said, “to be honest, I don’t think there is any genius to this. I think the model is no different than how you would raise your children. We told our children, if you’ve made a mistake, be honorable enough to admit it and do your best to make it right. If you did not make a mistake, don’t let anybody take advantage of you, and learn from all of your experiences.”

Well, there may not be any genius to the principles per se, but the real genius of the Michigan model is that they’ve been practicing the common sense principles since 2001, and they’ve been continually improving it. That’s what it makes different from other hospitals. All hospitals and pharmaceutical companies say in their mission statements that they put patients first, but how many of them practice what they preach?

Nine elements. On Saturday, December 16, 2017, four premature babies in the intensive care nursery at Ewha Women’s University Medical Center, a major university hospital in Seoul, Korea, suffered cardiac arrest and died in the space of half an hour. I asked Boothman how the University of Michigan hospital would have responded to this type of crisis. Boothman applied the nine elements of the Michigan model to show how it would be approached.

The first element is the notification of the event. The moment the hospital discovers the problem or crisis, the staff would go to the patients’ bedsides immediately. This is a radical departure from the approach of most organizations, which do not respond until there is a claim, and this often takes years—the opportunity to support the patients and staff and to ensure safety in the clinical environment is not optimized. Under the Michigan Model, they would also have counseling available for the families. Supporting the patient would not be contingent on whether or not the hospital was at fault.

The second, third and fourth elements happen simultaneously. Two and three are about supporting the patients, their family members, and the medical staff. The University of Michigan hospital staff would connect with the patients or their family members saying that they are horribly sorry, they will begin investigating the situation immediately, and they will do whatever they can to support the family until they find an answer. Here, Boothman noted that it is important to promise the family that the hospital will speak with them directly as soon as the hospital knows more. The University of Michigan hospital would also bring the staff together in a caring—and not a punitive—way. Because psychologically supported staff deliver a higher quality of care. The fourth is about making sure that the clinical setting is safe, in this case, to ensure that no other babies get hurt.

Kim Hoh, representative of THE LAB

The fifth element is a focused investigation on getting facts and expert opinions on what went wrong, and the sixth is sharing the results openly, not just with the families but the medical staff involved and leadership. Boothman said that “the hardest part of the Michigan model is to be disciplined enough to know the difference between what you think happened and what you know happened. I would rather be a little slower on the disclosure, but make sure that I get it right. I can’t unring the bell.” Once the hospital’s findings are complete, they would meet with the babies’ families to explain what had happened. At the University of Michigan hospital, if they concluded that they had done everything by the book, they would not normally (though there are exceptions) offer compensation to the patient or family. Regardless of the financial outcome, the key element of the Michigan model is to stay connected to the family. The hospital would assign a point person for each family who will be in constant communication with them. For the University of Michigan hospital, it is not just one conversation but an entire process.

The seventh element is to be completely accountable to the conclusion. If the hospital concludes that its medical staff did something of which it is not proud, then it would go straight to the family and say, let’s talk about compensation. The issue would then go to the hospital’s claims committee, which has representation from the financial offices, and hospital leadership would present the proposed compensation to the committee for approval.

The eighth and ninth elements are to hardwire the patient safety improvements prompted by these experiences so that such accidents don’t happen again. The hospital staff and top management sit together to review, discuss, and learn from the crisis experience without delay and then come up with patient safety improvement initiatives. As the saying goes, never let a good crisis go to waste.

I had the opportunity to analyze the Ewha Women’s University’s case and present it at the Hospital Innovation and Patient Experience (HIPEX) conference last year. I focused on two things: how hospital staff communicated with the parents of the babies who had died, and the hospital’s first press conference the day after the event. The parents who had lost their babies wanted to meet with the top management of the hospital immediately but weren’t allowed to. Then, the parents learned of the press conference from an internet news source, not from the hospital. I asked Boothman what he thought. “At the University of Michigan hospital, our goal is to find out from the family what they need and what they know. Not only would we be listening to them and listening to what these losses meant to them, but we would ask them point-blank, who do you need to hear from? If they wanted to talk to a pathologist, we would arrange the meeting. We would never run away from them…. We would never have a press conference without their knowledge.”

Boothman teaches at the University of Michigan Law School and is a guest lecturer at other law schools. He believes that U.S. medical education has finally come to realize that the best doctors are not those who can memorize and regurgitate facts but those who have emotional intelligence, good communication skills, and problem-solving skills—people who understand that people are not perfect, and who can admit mistakes.

My last question to Boothman was about the future of the model. He replied, “Here is what has gone unreported in hospitals so far. I can ask any risk manager, ‘How much have you spent for malpractice?’ and they can always answer that question. But because they treat all injured patients as undeserving, they can never answer the next question: ‘How much should you have spent?’ We at the University of Michigan can answer that question, and the answer is unsettling. In 10 years, by our own analysis, 73 percent of the money spent was our fault. That has a powerful impact on your business model. When you can put a price tag on poor care because we didn’t do our best, it can change your business priorities. Therefore, the next step is to say, now that we are accountable for patients who have been harmed, we need to learn from that and keep reducing those numbers.”

How to reduce the numbers? I ask myself. Rather than asking, “How can we avoid any lawsuit?” we need to ask a different, a higher, and a better question: Are we proud of the care?

hoh.kim@thelabh.com

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