Report out on Somerville Hospital ER death, showing weaknesses at CHA and in state law
A long-awaited outside examination of Cambridge Health Alliance’s actions in the case of Laura Levis, the woman who died after she couldn’t get into the emergency room at Somerville Hospital, has found that no one at the Alliance intentionally withheld information about the incident from her husband, Peter DeMarco.
The report released Thursday by the Alliance also didn’t fault any individuals involved in the case, including a nurse who peered briefly from a hospital entrance and didn’t see Levis collapsed on a nearby bench, and a security guard who didn’t offer to go outside to look for her. It said they acted properly based on what they knew. No one was watching surveillance video at the time Levis was outside because the two security guards were at a psychiatric patient’s bedside.
Levis, of Somerville, suffering a severe asthma attack, called 911 after encountering a locked door to the ambulance bay and never made it to the main hospital entrance. After the nurse didn’t see her, an ambulance crew found her in cardiac arrest and brought her into the emergency room. She died seven days later. No one at CHA told her husband what had happened.
According to the report by the Foley Hoag law firm, no one in management or higher up asked whether DeMarco was told the full story; some assumed he had been. This continued even after some CHA trustees knew that the case was being investigated internally at the same time the Alliance basked in favorable publicity from a thank-you letter from DeMarco shortly after Levis died in September 2016, the report said. DeMarco did not find out the full facts until later, from a police report.
Not a “serious reportable event”
A 2012 state law mandates disclosure to patients when a doctor or hospital makes a mistake that causes serious harm, but it’s unclear what impact the law has had. The report didn’t mention that legal requirement, saying that when Levis died, CHA policy required disclosure only when the incident met the definition of a “serious reportable event.” Levis’ case didn’t fit that category, the report said. The health care system said it valued openness and apology, but didn’t have explicit procedures to carry that out, according to the report.
The 2012 law, which was hailed as a move toward transparency by doctors and hospitals, also encouraged disclosure by providing that an apology generally couldn’t be used as evidence by plaintiffs in a malpractice case. Still, CHA cut off personal contact with DeMarco after he took steps to file suit; he abandoned that effort, but communication did not resume. The health care system officials first apologized to DeMarco for not telling him the full story this past November, after he wrote an emotional article for the Boston Globe detailing the event and was interviewed on national television.
The report recommended that CHA consider apologizing every time it “receives notice of potential litigation.” It also proposed that the Alliance consider adopting an automatic procedure for disclosing to patients and their families that it’s conducting an internal investigation, called a “root cause analysis.”
Warnings of “backlash”
As promised, the Alliance made the full report public, but did black out portions relating to “peer review,” a process in which doctors or others evaluate a medical professional’s performance that is barred from disclosure by state law. The report is posted on the CHA website. In a statement, board of trustees chairman Joshua Posner said trustees and senior managers “fully support” the review’s recommendations and will work on “developing a path to move forward” with them.
In a footnote, Foley Hoag said it was hired to be “outside counsel” to CHA – act as the Alliance’s attorney – not to be “outside investigators.” That could explain why the report included substantial discussion about how the Alliance dealt with “risk” to its own organization from adverse publicity and fissures in the CHA community. The report found that trustees ignored the danger of benefiting from DeMarco’s initial gratitude while knowing – and not disclosing – that CHA was investigating the delay in Levis’ emergency treatment. Lower-level managers warned superiors about the risk of “backlash” from this situation but nothing was done, the report said.
It also said the Globe article left the CHA community with a “lack of trust and cohesiveness.”
“The organization did not seem unified in seeing the value of finding the facts and determining whether there were additional lessons to learn,” the report said. There was “finger pointing” and fear that people’s statements to the law firm would be reported to trustees, it said. The “lack of trust” can “affect performance,” the report said.
Even before the Globe article, distrust and division existed, the report said. The Alliance’s internal investigation “was not fully candid,” the findings were “diluted” as they moved up the chain of command, trustees showed reluctance “to ask difficult questions,” and the board didn’t always get information “in a way that was clear and concise.”
Communication, Apology and Resolution
The 2012 law made Massachusetts a leader in the movement to tell patients and their families when a health care provider made a mistake, apologize and offer compensation if appropriate. Besides mandating disclosure and letting providers apologize without risk that their statements would be used against them in court, the law required six months of notice before a patient files suit, to give time for a settlement. The cap on malpractice awards against a nonprofit hospital was raised to $100,000 from $20,000; but public hospitals such as CHA already had a $100,000 cap.
In the months leading up to adoption of the law, several hospitals, Beth Israel Deaconess Medical Center, Baystate Medical Center and Brigham and Women’s Hospital, pioneered the concept of “communication, apology and resolution,” known as CARe. They developed detailed support and training programs, including on-call “coaches” assigned to help doctors apologize to patients; videos; and other training material.
Currently five hospitals, the Massachusetts Hospital Association, the state Board of Registration in Medicine, physician group Atrius Health, patient safety advocates, and the Massachusetts Bar Association are members of the Massachusetts Alliance for Communication and Resolution following Medical Injury. The organization acts as a clearinghouse in informing hospitals and doctors about ways to implement CARe.
It’s not known what other hospitals are doing to comply with the 2012 law; there’s no mechanism to enforce the disclosure mandate. When Cambridge Health Alliance spokesman David Cecere was asked for specifics about what the Alliance had done in response to the 2012 law, he gave a general answer: “We closely monitor changes in all relevant laws, regulations and other requirements to ensure our ongoing and future compliance with them, including Chapter 224.”
Movement toward transparency
Jeffrey Catalano, a partner at the law firm of Todd & Weld who represents malpractice plaintiffs and helped write the law, said the law was an example of traditional opponents – hospitals and doctors versus malpractice lawyers – working together. “The goal was, let’s make hospitals safer for patients,” he said.
Catalano said the movement toward transparency is “slowly but surely gaining traction,” though he acknowledged that “there are many ways to get around” the disclosure mandate, such as doctors or hospitals deciding they are not responsible for a patient’s injury.
He said wronged patients had benefited from candid discussions with doctors and hospitals.”Some of my most rewarding cases have been the doctor, the hospital and the patient sitting in a room together,” Catalano said. “You’re not out for blood any more,” he said, adding that it makes a patient feel better despite the harm done. Patients are more interested in preventing someone else from being hurt than in getting a big monetary award, he said.
Weaknesses in the law
In contrast, Andrew Meyer Jr., the malpractice attorney whom DeMarco consulted and who told DeMarco the $100,000 cap would not even cover the expense of of preparing a case, said the 2012 law “provided much more protection to the doctors” than to patients.
“If someone feels warm and fuzzy for a few minutes, does that improve the system?” Meyer said. The protection against using apologies in malpractice cases is being “used as a weapon. Now anything the doctor says, they say it’s an apology,” he said.
As for the disclosure mandate in the law, Meyer said it’s subject to interpretation by the doctor or hospital. “There’s no independent review,” he said.
“In many of our claims they do not report these cases because they interpret that nothing went wrong,” Meyer said. “When they choose not to report, there’s no remedy for the patient.”
“They put one over by adopting this law,” Meyer said.
Meyer and Catalano agreed in condemning the $100,000 malpractice cap. Because of the limit, patients must sue individuals even when systemic errors caused their injuries, they said.
DeMarco is campaigning for a bill that would remove the cap for cases of severe injury, as well as legislation to have state regulators write rules governing emergency room access. At a City Council subcommittee meeting Feb. 26, CHA chief executive Patrick Wardell said the Alliance supported both bills, but Cecere said later that CHA is still considering whether to support lifting the cap.