Distrust may compel patients to accept lower compensation

Patients who are offered disclosure, explanations, apologies and monetary compensation for medical errors may be more likely to accept lower rather than maximum compensation, apparently due to distrust of the motives behind a full compensation offer. That is one of the findings of a study of disclosure and resolution programs published in the December issue of Health Affairs.

In recent years the concept of disclosure and resolution to limit liability exposure and preserve provider/patient relationships has gained traction, with several large healthcare systems adopting disclosure and resolution programs and reporting encouraging results (New Engl. J. Med. 2010;362[15]1353-6). A cross-disciplinary team of researchers sought to determine what drives patient acceptance of a medical error disclosure, explanation and apology, and to gauge the impact of an offer of financial compensation.

Michelle M. Mello, director of the Program in Law and Public Health at the Harvard School of Public Health in Boston, and colleagues developed an online survey using 16 hypothetical vignettes describing medical errors. Survey participants were randomly presented with a vignette and then asked to answer questions about their response to it. The researchers received survey results from 3,253 participants aged 18 or older.

The vignettes described errors that were clear and comprehensible to the survey participants, and the physician took full responsibility for the mistake, explained how it occurred and offered a complete apology. The physician and an administrator offered compensation in some of the vignettes. The vignettes described either diagnostic or surgical errors, and the injury caused by the error was either minor or serious.

There were four levels of compensation offered: no compensation, waiver of medical expenses, reimbursement of out of pocket costs up to $25,000 and “loss of time” up to $5,000 (limited compensation), or full compensation, which included compensation for economic losses and pain and suffering. The latter offers were meant to be comparable to what a plaintiff could expect as the proceeds of a successful medical malpractice claim. A patient who accepted less than full compensation retained a right to sue, but a patient who accepted full compensation was required to sign a release of claims.

The researchers found that overall two-thirds of the participants felt the injury entitled them to more financial compensation than they were offered, regardless of the severity of the injury. This response was most marked among participants who were not offered compensation (73.4 percent), or were offered waiver of medical expenses (63.1 percent), but a majority of even those offered full compensation felt they should have been offered more (59.4 percent). However, among participants considering non-serious injury, 37.5 percent did not feel entitled to money to compensate for their injury. And a third of the respondents who answered that they should not be entitled to financial compensation were considering a vignette that described a serious injury.

Although nearly three-quarters of the participants whose vignettes included offers of financial compensation indicated that they would accept the offer, the percentage who would accept decreased as the offers became more generous. The researchers found that the respondents’ perception of the motivation behind the offer affected their willingness to accept it. “Generous offers may have perverse effects,” the authors wrote. “Respondents viewed apologies and explanations, identical in wording, as more self-interested when accompanied by generous compensation offers. The offers themselves were also more likely to be seen as self-interested when they were more generous.”

The researchers also queried the participants about whether they would seek legal advice after the disclosure and whether they intended to change doctors. Across all the compensation offers, participants were likely both to consult an attorney and to change doctors. Those respondents considering scenarios involving serious injury were significantly more likely to seek legal advice, change doctors and be suspicious of the motives behind compensation offers than those respondents considering more minor injuries.

The authors pointed out that it may not be possible to extrapolate a survey population’s responses to hypothetical scenarios to a real world patient who is learning of medical harm due to physician error. “The timing of compensation offers, the skill and ‘emotional intelligence’ of the people conducting these difficult conversations, the strength of the pre-existing healthcare relationship and other factors may affect how patients respond,” they concluded.