CRPs represent a significant advance over current practice with respect to medical injury, which is seldom timely, compassionate, transparent, or preventative. The United States expends over $3 trillion annually on health care, far more per capita than any other nation, and the high status and economic prosperity of American physicians reflect their careful selection, intense training, and ethical commitment. Why this massive investment has yielded so few dividends in terms of effectively responding to avoidable injury is an important question, which could also be asked about the safety, quality, and value of US health care more generally. If the goals are self-evident, and the methods for reaching them relatively clear, why have we not already achieved greater success?

Surprisingly often, the answer to such apparent paradoxes is that a century-long accumulation of legal and regulatory constraints that originally were intended to reinforce physician professionalism has ended up frustrating sound policy design as health care became more technically sophisticated and necessarily more industrialized and costly [24]. The legal domain principally responsible for erecting barriers to effectively communicating and resolving medical errors is medical malpractice law, which continues to influence physician perception and behavior to a far greater extent than an unbiased observer would predict given its actual frequency, outcomes, or expense [25].

An overtly adversarial system that targets individual physicians and thrives on secrecy, expense, and delay, medical malpractice litigation does none of the things that CRPs seek to accomplish [26]. Civil liability for medical negligence has always represented an imperfect solution to the problem described years ago by Gold of “holding experts accountable to non-experts” [27]. In an unmeasured world of professional judgment and discretion, contextual decisions by local judges and juries based on a “standard of care” that was determined by professional custom and introduced into evidence by the testimony of other physicians seemed reasonable. Almost from the outset, however, this approach evoked visceral opposition from the medical profession because the setting and language suggested a criminal proceeding, monetary damages with a hefty cut paid to plaintiffs’ lawyers smacked of blackmail, both patients and their testifying experts seemed to be engaged in acts of betrayal, and final decisions on clinical matters rendered by laypeople lacked legitimacy in physicians’ eyes.

As medicine grew in sophistication and expense, malpractice lawsuits became a greater threat to physicians and a more formidable obstacle to honesty about error [28, 29]. Fragmentation of care delivery among professional and institutional providers led plaintiffs’ lawyers in search of defendants with deep pockets, to which potential defendants responded with concealment or finger-pointing. As “captains of the ship,” physicians were forced to bear considerably greater financial responsibility for health system failings than their earnings could reasonably support. The solution, third-party liability insurance, in many ways compounded the failings of the malpractice system by regarding patients as both strangers and adversaries, as well as by creating a new political interest group to question the veracity of malpractice plaintiffs and lobby for legislative restrictions (“tort reform”) whenever insurance premiums rose.

Protecting and managing personal information has always been a central aspect of preserving reputation [30]. Because allegations of medical malpractice were so entwined with physicians’ professional and personal reputations, publicity about possible errors (which often took the form of malicious gossip rather than objective proof) was fraught with peril. Silence when error was unsuspected by patients, and quiet settlement when error was self-evident, therefore became the modus operandi of many malpractice defendants. This resistance to sharing information about medical errors has carried over to the modern era of clinical practice in several ways, each of which CRPs must confront and overcome if they are to succeed.

First is the increased diversity of parties in whose good graces physicians must remain, which used to be limited to colleagues who referred them patients, malpractice insurers, and state licensing boards. Relevant constituencies now include hospitals, health insurance networks, and various other contracting partners, as well as Internet-based rating systems which patients and competitors can manipulate instantly and costlessly to harm physicians’ reputations. Second is the paradoxical way in which some physician groups and malpractice insurers have responded to new knowledge about the frequency of medical errors. After decades hearing such groups assert that lawsuits should be curtailed because few physicians committed errors, one might have expected revelations that errors are in fact common to cause some backpedaling. To the contrary, many of these stakeholders redoubled their efforts to secure tort reform, arguing that only if physicians are protected from litigation and its associated publicity will they report problems internally and work collectively to improve patient safety. When Pennsylvania in 2003 became the first state to mandate disclosure of serious adverse events, for example, many health-care providers and malpractice insurers dismissed it as a trick of the trial lawyers designed to gin up additional business.

Third is informed consent, which is well accepted by recent generations of physicians as an ethical and legal obligation in advance of surgery or other procedures. If physicians are obligated to tell patients about bad things that might happen, how can physicians conceal information about bad things that did happen? Yet informed consent is not generally understood to encompass error disclosure. Even worse, some physicians incorrectly believe that informing a patient about a potential complication absolves them from fault if that complication occurs, regardless of whether the particular occurrence was preventable. Fourth is confidentiality in the settlement of malpractice lawsuits. Settlement was only in physicians’ reputational interest if it was done quietly (something that the National Practitioner Data Bank and mandatory reporting to state licensing boards has made more difficult). As a result, settlement agreements typically prohibit claimants and their lawyers not only from publicizing the amounts received or disparaging the physicians involved but also from discussing the circumstances of the care received—a bitter pill for patients and family members seeking validation of their experiences and protection for future patients [31].

On the other hand, the dark cloud that hangs over effective communication and resolution of errors because of medical malpractice contains a few silver linings for CRPs. Physicians fear malpractice suits in part because they feel unable to control them; tort reform, for example, requires sustained political engagement and costly campaign contributions and can be undone by state constitutional courts even if legislatures and governors remain sympathetic. By contrast, the decision to be honest with a patient, and quite possibly to defuse a potential lawsuit, is fully within each physician’s individual control. Transparency coupled with early resolution has even greater advantages relative to conventional litigation: less anxiety and hostility, less time away from one’s medical practice, quicker analysis with greater opportunity to implement safety improvements, and perhaps the chance to avoid mandatory reporting of a settlement to a licensing board or the national data bank, with its associated blemish on one’s professional reputation.

The move toward CRPs began voluntarily in a few institutions as early as the 1980s, expanded and acquired support from professional associations and regulatory bodies in the early 2000s, and became more systematic following the enactment of the ACA in 2010. Leaders in early settlement models include the Veterans Health System, several self-insured academic institutions (Michigan, Illinois, Harvard, Stanford), and some nonprofit hospital groups (Catholic Healthcare West, Ascension Health), while non-captive liability insurers (COPIC, Coverys, West Virginia Mutual) have pioneered limited compensation models not requiring release of legal claims or reporting to the National Practitioner Data Bank [32–34]. Patient advocacy groups also embraced transparency following error, notably the SorryWorks! Coalition, which urged hospitals to be honest with patients as a compassionate obligation and a sound customer relations strategy more than for litigation risk management or patient safety. With leadership from the federal Agency for Healthcare Research and Quality (AHRQ), which began funding demonstration projects and developing consensus standards in 2010, the focus shifted from simple disclosure of error, often with apology, to a structured process of patient engagement, compensation, and safety improvement.