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By MARY MASSINGALE
STATE CAPITOL BUREAU
The power of two little words is hoped to break the logjam in the medical malpractice reform squabble.
A group of doctors, trial lawyers, insurance brokers and patients' advocates have formed a nationwide advocacy group called The Sorry Works! Coalition. The group advocates that doctors should be allowed to apologize for medical errors, in the hope the words "I'm sorry" will lead to fewer lawsuits and lower settlements.
"It gets down to what everybody wants, and what everybody wants is a reduction in medical errors," said Doug Wojcieszak, spokesman for the coalition. Wojcieszak also serves as spokesman for Victims and Families United, a plaintiffs' rights group.
Doctors are usually advised by their lawyers and insurers to break off communication with patients threatening a medical malpractice lawsuit and are especially warned not to apologize out of fear the admission will be used against them in court.
The program is also shared in current proposals sponsored by competing interests in the medical malpractice reform fracas. House Bill 705 - sponsored by Republicans, the Illinois State Medical Society and the Illinois Hospital Association - and Senate Bill 50 - sponsored by Democrats and the Illinois Trial Lawyers Association - each call for a "Sorry Works!" pilot program.
The first year of the two-year program allows for just one hospital in the Metro East area to participate, acknowledging that Madison County has become a popular venue for class-action lawsuits around the country. "Sorry Works!" calls for the hospital and its physicians to "promptly acknowledge and apologize for mistakes in patient care and promptly offer fair settlements." During the second year of the program, an additional hospital anywhere in the state would be included.
The measure also would create a safety net for participating hospitals by allowing the facilities to apply for state grants to cover costs that are determined to be excessive. A legislative oversight committee would decide upon the grant amounts, which would not exceed $2 million annually to any single hospital.
The program is modeled after an apology-and-disclosure policy launched in 1987 by the Veterans Affairs Medical Center in Lexington, Ky., after two malpractice cases cost the hospital more than $1.5 million.
Dr. Steve Kramen, then chief of staff of the veterans' hospital, and staff attorney Ginny Hamm initiated the policy.
"Patients are treated in a respectful way that does not cause anger," Kramen said. "Lawsuits were drastically reduced, liability costs were low despite higher numbers of claims because of our voluntary disclosures, but the total costs were actually lower than average."
A 1999 medical journal article last examined the program's statistics, and found the Lexington facility paid out an average $190,113 per year from 1990 to 1996 for settlements, with the average claim payment tallying $15,622. The Lexington hospital ranked 29th in total payments when compared with 35 other veterans hospitals located east of the Mississippi River.
Hamm, who still works for the hospital, said the number of claims has remained consistent since 1987, but the cases she has tried in court have dropped to an average of one case every 18 months to two years.
The key, according to current chief of staff Dr. Michael Doukas, is that the center's risk management team is viewed as a "safe haven" for doctors to talk about possible errors.
"We're proactive," Doukas said. "We don't wait for someone to come to us with a complaint."
Hamm estimated that about 60 percent of settlements result from the hospital going to the patient with a finding.
Acknowledging a mistake and offering restitution may sound like a childhood lesson often ignored in the realm of medical malpractice litigation, but the practice of saying "I'm sorry" has already spread to at least six states. Colorado, Maryland, North Carolina, Ohio, Oklahoma and Wyoming all have laws allowing doctors to apologize to patients without the fear that the admission will be used against them in court, according to the National Conference of State Legislatures. Five additional states are considering similar legislation this year.
Although apology-and-disclosure policies are less complicated in veterans' hospitals because the federal government is the single employer, the practice is slowing spreading to the private sector. The University of Michigan Health System adopted a similar policy in 2002. The hospital's attorney thought the facility should take advantage of the state's mandated six-month "cooling off" period before plaintiffs and defendants can go forward with a medical malpractice case.
The hospital uses that six-month period to investigate claims, and staff members meet with patients, their family and lawyer to review the case. If the hospital's care is found to be unreasonable, the hospital and doctor apologize and offer to reach a quick and fair settlement.
If the investigation finds the patient's care was appropriate, staff still meet with the patient to review the case and offer full explanations to clear up any misunderstandings. If a patient moves forward with litigation, the hospital will defend the case.
"It goes way beyond apologies," said Kara Gavin, a spokeswoman with the University of Michigan Health System. "We try to learn from every situation."
The new system appears to be working. In July 2004, UMHS had 140 pre-suit claims and lawsuits pending, compared with 260 in July 2001. Legal costs between August 2001 and September 2002 dropped by $2 million, and the average legal expense per case has dropped by about one-third. The time it took for a claim to be resolved - in any way - dropped from three years to slightly less than a year. And, UMHS's malpractice premiums have stayed practically level.
A Colorado surgeon and author of "Healing Words: The Power of Apology in Medicine" cautions doctors to stay focused on the emotional needs of their patients - a lesson he learned when he was sued by a patient 10 years ago.
"Those two words - I'm sorry - is exactly what patients really want to hear from their physicians after a medical error, in addition to what happened," Dr. Michael Woods said.
Mary Massingale can be reached at 782-6882 or mary.massingale@sj-r.com.
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