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Directly below is an interesting article on apology and disclosure written by a Kentucky medical malpractice attorney. Also follow this link: Click Here for a very good article on apology in a recent edition of the American Academy of Family Physician's magazine.
One article written by a med-mal attorney, the other article written by a prominent family physician, both articles agreeing on the importance of apology and disclosure for patients & families. And both authors agreeing that candor can reduce litigation.
However, both articles need a slight correction...they mention the importance and need for apology immunity laws to do disclosure. This is a point we at Sorry Works! continually keep harping on...apology laws have good PR value-they make docs feel more comfortable about apologizing-but they have little legal value. In fact, you don't need an apology law to start a disclosure program. If you do disclosure right and still get sued, the evidence you create during that disclosure event will strengthen -not weaken- your defense. You shouldn't want to pretend that disclosure did not happen. Remember,trial lawyers look for cover ups, not honest, candid defendants.
Enjoy the article below and share with your colleagues, especially physicians. Thanks!
Middle ground on tort reform
By DAVID C. TRIMBLE
9/19/07
Some of you who read this may have already been in this scenario: A loved one is injured or dies while in medical treatment, under circumstances where the injury or death was unexpected. You begin to wonder if the medical treatment was in error or to blame for the injury or death, and consider going to an attorney to look into a possible medical negligence claim.
You will inevitably think about how the physician involved acted around the time the problem occurred. If he/she came to the family and apologized for what happened, will you take that simply as an expression of sympathy, or as an admission of fault? If he/she does not apologize in any form or fashion, will you think of the physician as "heartless and uncaring?"
Believe it or not, this dichotomy is a concern to most physicians, too. When something untoward happens, exactly what do they say to the family that conveys their care and concern without being seen as an admission of liability or fault? When I do risk management seminars for hospitals or medical groups, it is one of the most difficult questions to answer - "How do I as a physician deal with or respond to a grieving, upset, or angry patient or patient's family?"
Over my career handling medical negligence litigation, these situations often do result in litigation being instituted, or avoided. A physician who has conveyed an attitude of caring and concern is statistically less likely to be sued than one the patient or family sees as disinterested. Yet many physicians who seem disinterested really are not, but simply do not or cannot express themselves in an appropriate fashion.
One of the primary reasons for this difficulty is that physicians fear an apology or expression of sympathy being interpreted as an admission of fault, and fear that by saying too much to the patient or family they are inviting litigation. This fear is not unreasonable. Under current law in Kentucky, anything the physician says is susceptible to a "he said/she said" debate once a matter goes to court.
A project which is gaining momentum, called the Sorry Works! Coalition, www.sorryworks.net, is working to ease the ability of physicians to apologize and share a grief or anger experience more personally with their patients. In other words, the project seeks to remove the handcuffs and allow the physician to care in all respects for their patient without fear of recrimination.
The solution is relatively simple, and 29 states have already put these laws in place. All they do is make expressions of apology inadmissible in court by statute or by amendment of the state's evidentiary rules. Five of these states have also passed mandatory disclosure laws, i.e., requiring disclosure to the patient if anything untoward or adverse happens in their care, regardless of whether it causes injury.
The Sorry Works! Project recommends a simple, four-step approach: (i) tell the patient what happened, using plain language; (ii) accept responsibility on behalf of the institution or yourself, as appropriate; (iii) apologize; and (iv) describe the next steps, including what will be done for the patient, and what will be done to prevent similar events in the future. The proponents of the project believe that this approach, coupled with the inadmissibility provisions, will in the long run reduce the number of malpractice claims and reduce the total amount paid on claims which are made.
The American Bar Association House of Delegates has adopted a resolution encouraging state lawmakers to amend their rules of evidence to incorporate similar provisions. The ABA's resolution is limited to expressions of apology and does not address admissions of fault or error; the latter would still be admissible under the ABA proposal. This distinction would probably need to undergo some analysis through court decisions to fully take shape, but it is a step in the right direction.
Bottom line, "tort reform" is a regular and recurrent issue in the Kentucky legislature, and no doubt will be again. So far the proposals have taken the form of damage caps, which would restrict an injured person's right to recover damages, and which have not proven to be effective. I have previously made proposals for a cost- effective method to tighten down on frivolous lawsuits. I would add my voice to those urging consideration of such proposals as are being put forth by the Sorry Works! Coalition as well. We need to find ways to the underlying problems and seek to solve them, rather than arguing about ineffectual Band-Aid cures such as damage caps.
David C. Trimble, a Georgetown resident, is an attorney. His column, The Bottom Line, appears every Wednesday in the News- Graphic. Readers can find more of Trimble's writing at his blog, stillonpatrol.typepad.com, or e-mail him at stillonpatrol@hotmail.com.
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