|
|
|
April 18, 2005
For the record: My name is Doug Wojcieszak (pro-nounced Woe-ches-zak) and I am the spokesperson for The Sorry Works! Coalition. We are a national non-profit group based in Illinois. Our membership is comprised of doctors, healthcare providers, lawyers, and patient advocates.
Mr. Chairman and members of the committee - I want to thank you for inviting me here today to testify. I consider this an honor and a privilege, and I hope my comments can add value to your efforts.
As a former legislative staff member for the Illinois House Republicans, I am going to take a slightly different approach with my testimony today. Instead of overwhelming you with a power point presentation and charts and graphs full of data, I am going to speak to you from the heart. I am going to look each of you in the eyes and explain why Sorry Works, apologies for medical errors, and full-disclosure is not only a middle ground solution to the medical malpractice crisis, but also the most comprehensive solution to the problem. A solution that can work here in Tennessee, which was recently tabbed a “crisis state” by the American Medical Association.
I am going to talk to you as a person who lost his oldest brother to medical errors, and as a person who has worked for both tort reformers and the plaintiff’s bar in the fight over medical liability reform. From a personal and professional perspective, I believe Sorry Works! to be the best solution all-around solution for the med-mal crisis.
I will show how Sorry Works! addresses the root causes of medical malpractice and treats all stakeholders in the crisis - doctors, hospitals, lawyers, insurance companies, and patients - fairly.
And I will demonstrate how Sorry Works! lowers lawsuits and liability costs for doctors and insurance companies while providing swift justice for victims and their attorneys without constitutional limits. Furthermore, by infusing honesty in hospital systems, doctors learn better from errors, thus increasing patient safety and further reducing liability exposure.
I want everyone to understand that what I am advocating to you is more than doctors simply saying, “I’m sorry.” While offering an apology is very, very important, there is much more to this than apologies…it’s about accepting responsibility for problems, fixing the processes so those errors don’t happen again, and also fixing problems of injured patients and families.
Finally, I will address the different pieces of Sorry Works! legislation pending before the Tennessee General Assembly.
***********
The story of Sorry Works! begins in Lexington, Kentucky at the Veterans Administration Hospital.
In the mid-80’s, the hospital had lost two multi-million dollar lawsuits. Not only did these lawsuits cost large sums of money, but they also turned doctors and patients into enemies. It wasn’t the way they wanted to practice medicine.
So, they implemented a new, unconventional policy: apologies and upfront compensation for medical errors.
Here’s how their program works:
After an adverse medical event - i.e, a bad outcome, unanticipated death, unsuccessful surgery, etc - doctors and hospital staff perform a root cause analysis. The analysis seeks to determine if the acceptable standard of care was met. The analyses sometimes involve the assistance of outside experts and usually take a few weeks to a couple months to complete.
During the analysis the hospital staff stays in close contact with the patient and/or family so they don’t suspect a cover up or feel abandoned.
If the root cause analysis shows that the standard of care was not met, the doctors and medical staff meet with the family and their attorney, apologize, provide explanations of what happened, tell how they will fix the processes so the error doesn’t happen again, and offer fair, upfront compensation.
However, if the standard of care was met (i.e, no error or negligence), the doctors and hospital staff still meet with the patient, family, and their attorney to provide explanations, open medical charts, answers questions, and basically prove their innocence. The hospital will empathize with the patient, but no settlement will be offered under any circumstances. Furthermore, the hospital will defend itself and their doctors to the death if a lawsuit develops - no settlements will be offered!
Conventional wisdom said they were crazy, but the Lexington staff happily reported in the December 1999 edition of Annals of Internal Medicine that their facility ranked in the lowest quartile of VA facilities for malpractice payouts; their average settlement per case was $16,000 versus the national VA average of $98,000. The Lexington approach spread to other VA hospitals in Los Angeles and Las Vegas and last fall was mandated in all VA hospitals nationwide.
The University of Michigan Hospital system adopted the Lexington program and has cut their lawsuits in half. Michigan also reports saving $2 million in defense litigation expenses annually - or 2/3 of their defense litigation budget - because cases are being settled in months instead of dragging out for years.
Michigan’s lawsuits are back to pre-1990’s levels, and they also report having “excited actuaries.” In fact, their actuaries are so excited they just released $50 million from their reserves.
Michigan is reporting other exciting results…..
When they started their program four years ago, the majority of the medical staff thought the hospital leadership was “crazy” for offering apologies and compensation for errors.
Today, in a recently completed survey, ninety-three percent of Univ. of Michigan medical staff support the program.
Better yet – in another voluntary survey, the Michigan trial bar said the program is changing their behavior. Better than 70% of trial lawyers surveyed said they are settling cases for less than would normally seek in trial & they are declining cases they would have taken a “flier” on in the past. The Michigan trial bar says they are changing their behavior out of respect for the positive behavior changes implemented by the University of Michigan Health System. Indeed, good feelings beget good feelings – all of this without any legislative initiative or tort reform.
Similar positive results have been reported at 28 Kaiser hospitals, 39 hospitals in the Catholic Healthcare West System, and Stanford University Hospital system.
Harvard Teaching Hospitals are joining the program this spring.
COPIC insurance of Colorado reports similar results. Malpractice claims against their 1,800 doctors have dropped by 50 percent since 2000 and settlement costs have fallen 23 percent.
So, how does this honesty program work? Why has it produced these results?
Reason #1: Anger Reduction
Forget everything you have heard about greedy lawyers and greedy plaintiffs being the cause of medical malpractice lawsuits. It’s anger - not greed - that is the root cause of most medical malpractice lawsuits. Anger literally forces people to call a plaintiffs attorney.
Patients and families become angry when doctors and medical staff clam up and cut off communication after a bad outcome. They become angry when questions are not answered. And they become really, really angry when doctors try to cover-up mistakes and lie about it. Indeed, the cover up is always worse than the crime.
The traditional risk management approach to medical errors is usually called “deny and defend.” This is where defense lawyers sweep in tell doctors and medical staff to keep quiet. I’m here to tell you today that deny and defend is a tried and failed risk management strategy. It produces anger and it’s the chief reason we have a medical liability crisis.
As legislators grappling with this thorny public policy issue you must look for ways to encourage hospitals, doctors, and insurance companies to steer away from deny and defend and move toward the approach originally developed in Lexington, KY.
Dealing with people with honestly and fixing their problems removes anger, and in most cases the urge to file a medical malpractice lawsuit. When anger is removed, so is the urge to financially punish doctors and hospitals.
It’s common sense….imagine having a doctor stand in front of you, apologize, tell you what he or she did wrong, how they are going to fix their processes so the mistake isn’t repeated, and offering you upfront compensation. It’s hard to imagine being anger at that doctor, and even harder to imagine wanting to file a lawsuit.
If you don’t believe me, look at the numbers and data coming out of the hospitals doing this program - they speak for themselves.
Reason #2: Reduction of non-meritorious lawsuits
Hospitals that are practice Sorry Works! are known as “straight shooters.” They call it straight when they make a mistake, and because of it are more likely to be believed when they say a bad outcome wasn’t their fault.
Some experts say non-meritorious or non-paying lawsuits account for 60% to 80% of all suits filed against doctors. These claims costs huge sums of money to defend and prosecute.
As legislators, if you want to reduce non-meritorious lawsuits - or frivolous lawsuits as they are sometimes called - you must again encourage hospitals, doctors, and insurance companies to abandon deny and defend practices and move towards honesty and transparency.
Honesty and transparency restores the reputation of hospitals and doctors and literally immunizes them against non-meritorious lawsuits.
When Michigan began their disclosure program, their chief risk officer met with all the major trial law firms and explained the program. The risk officer said they would try to catch all errors before people left the hospital, but, invariably, mistakes will slip through. He asked the trial lawyers to come talk with them before filing a lawsuit – bring in their clients to talk with Michigan and their doctors to determine if an error was made – or not.
The chief risk officer of Michigan tells story after story of such meetings where lawyers learned that bad outcomes were not caused by errors, and those trial lawyers saying “thank you” to Michigan for saving them time and money on a non-meritorous case.
Reason #3: Turning litigation logic on its head
As legislators I’m sure you heard doctors complain about being forced to settle a lawsuit where they did not commit an error but the insurance company insisted on settling because it was cheaper than defending the charges. And I’m also sure you’ve wondered why hospitals and insurance companies sometimes fight cases of clear, gross negligence, such as a wrong-side surgery, where the patient or family is drug thought court system for years, and the hospital or insurer is stung with a big verdict.
With Sorry Works, everything is in reverse. Cases of clear negligence are settled quickly and fairly, which saves large sums of money on defense litigation expenses and also lowers settlement costs because patients and families aren’t trying to financially punish doctors. Conversely, when the doctor and hospital feels they have not committed an error, they will defend the case to the death with no settlement, which sends a strong signal that further reduces the filing of non-meritorious or frivolous lawsuits.
Reason #4: Reducing medical errors
Infusing honesty in hospital systems helps doctors learn better from errors, which increases patient safety and further reduce liability exposure. Hospitals that practice Sorry Works! report that their physicians become better at doing medicine.
The University of Michigan Hospital System believes they are going to become the safest teaching hospital in the country because of this program.
*******************************
Now there many emotional knee-jerk responses to Sorry Works! Without question, what we are proposing with Sorry Works! goes against conventional wisdom, but it makes all the sense in the world. The data is there to support it, and common sense says it works too. However, the doubters continually offer up knee-jerk emotional responses to Sorry Works! and I want to address the most common rebuttal today:
Challenge: What if sorry doesn't work? A doctor has just admitted guilt.
Response: So, a doctor apologizes for an error and offers compensation, but the compensation is rejected and a lawsuit is initiated.
Classic story from the University of Michigan hospital system: They gave the wrong type blood to a patient, and the patient went into shock. Fortunately, they caught the mistake quickly and corrected the situation, but the patient did have to endure some pain and suffering and extra time in the hospital.
The Michigan staff apologized and offered $10,000 in upfront compensation. The patient and his attorney thought they should get $250,000. They went back and forth, and Michigan’s final offer was $40,000, which the patient and attorney rejected.
The case went to trial and the Michigan lawyer began the trial by admitting fault for the mistake, apologizing, explaining how Michigan was going to fix the problem so it wouldn’t happen again, and telling the judge and jury the whole reason for the trial was to simply determine fair compensation for the plaintiff.
The jury awarded $0.
As I close my presentation, I want to leave you with legislative suggestions.
As legislators you have an opportunity to provide leadership on this issue and encourage healthcare and insurance organizations in Tennessee to adopt Sorry Works!-type programs.
You have a bill before the committee submitted by Rep. Briley, and it is my understanding that there are a couple other apology bills before the Tennessee General Assembly.
I understand there are some serious questions and pushback on these bills, and I’m sure my testimony today will add to the discussion and debate.
Here is my suggestion: Pass a shell bill today and keep working this issue alive for the remainder of the session so people from all sides can craft a compromise.
This compromise bill should include:
- An apology immunity statute similar to Colorado’s statute. Doctors have been told for decades not to apologize lest it be used against them in court. Apology immunity statutes remove this excuse. They are a good PR tool, but, in reality, a legal nothing. Think about it…a trial lawyer is not going to want to introduce a doctor’s apology to a judge and jury because will humanize a doctor, whereas defense counsel should want to tell a judge and jury his client tried to do the right thing by apologizing and offering compensation, but the plaintiff is greedy – remember the Michigan case.
- Include in the bill the mandatory disclosure language adopted by the Pennsylvania legislature. In Pennsylvania, healthcare facilities are required to notify patients and families in writing within 7 business days after a bad outcome. These letters are not required to include an admission of fault or even an apology, but the letter itself puts a stop to the deny and defend games that have precipitated the med-mal crisis.
- Provide grants or funds to help healthcare and insurance organization with the implementation of disclosure programs.
- Mandate training on full-disclosure/Sorry Works! for all medical students in Tennessee and also mandate it as a continuing education requirement for all currently licensed healthcare professionals.
These legislative ideas can push and promote the idea of disclosure in your state.
One last idea – as may have noticed from comments and testimony NONE of the hospitals and insurance organizations I spoke about had a legislative mandate to do Sorry Works! They just did it on their own and have been very successful.
This is the beauty of Sorry Works….while legislation can help encourage Sorry Works, hospitals and insurers don’t have to wait for the legislature to act. They can do Sorry Works! on their own –today!
So, the next time a medical, hospital or insurance organization asks you as legislators to fix the medical malpractice crisis, your response should be a question: “Tell me, have you implemented Sorry Works!-type disclosure programs yet?”
|
|
|
|
