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August 16, 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 upcoming discussions and work. Furthermore, I applaud your efforts in exploring alternative ideas to medical malpractice reform.
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.
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.
Finally, 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.
Sorry Works! is a comprehensive process, not just a few words.
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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 with similar positive results.
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. Similar positive results have been reported at 28 Kaiser hospitals and 39 hospitals in the Catholic Healthcare West System.
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 a big part of the 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.
Furthermore, look to experts like Dr. Gerald Hickson of Vanderbilt Medical Center and Dr. Michael Woods.
Hickson researched why physicians get sued, and his 2002 paper in the Journal of the American Medical Association - or JAMA - had quite a story to tell. I’ll read you a few lines:
“Patients who saw physicians with the highest number of lawsuits were more likely to complain that their physicians would not listen or return telephone calls, were rude, and did not show respect.”
Dr. Hickson continued with the following passage:
“Risk (of being sued for malpractice) seems not be predicted by patient characteristics, illness complexity, or even physicians’ technical skills. Instead, risk appears related to patients’ dissatisfaction with their physicians’ ability to establish rapport, provide access, administer care and treatment consistent with expectations, and communicate effectively.
To summarize Dr. Hickinson’s findings, the doctors who are poor communicators, arrogant, and make their patients angry are more likely to get sued.
Also, consider the following from Dr. Michael Woods’ book, “Healing Words.” In his book, Dr. Woods cites a study which looks at male and female doctors of similar training and practices. The study found that male physicians are three times more likely to be sued than their female colleagues.
Why? If you believe our societal norms that females are better communicators than males and value relationships more, than it follows that female doctors are better at keeping their patients from getting angry because they are better at preserving relationships.
Anger is the key - it’s the root cause of the litigation “disease.” Treat the root cause - especially after a bad outcome or adverse medical event - you can realize success versus dealing with the symptoms, which tort reform is predicated upon.
If you can reduce anger, you have a better chance of reducing lawsuits, settlement costs, and liability expenses. Sorry Works! provides the mechanism to effectively reduce anger.
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.
Sorry Works! hospitals report that if a person contacts a plaintiff’s attorney demanding to file a lawsuit, the first thing the plaintiff’s attorney will do is call the hospital and ask if they are apologizing and settling or fighting the charges. If the hospital says they are contesting the case, the plaintiff’s attorney will usually take a pass because they know the hospital is probably on solid ground.
Compare the honesty approach to “deny and defend” where all cases are fought and contested.
By claming up and breaking off communication, deny and defend makes doctors look guilty 100% of the time after all bad
outcomes - whether an error was committed or not. Deny and defend invites lawsuits which, after large sums of defense dollars have been spent, do we learn that no error was committed, or that not all doctors named in the lawsuit were at fault.
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.
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.
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.
Here’s a classic story from the Lexington VA hospital: An elderly gentlemen had been visiting their hospital for blood clots, and one day they gave him the wrong dosage level of his medication. The man developed blood clots that broke off and went to his lungs, at which time he died. The root cause analysis showed the error, the hospital apologized and settled quickly and fairly with the family….but they also learned from their mistake.
Hospital leadership learned that the medicine in question came in many different dosage levels, yet the different dosage levels were all in bottles with white labels and lined up next to one another in the hospital pharmacy. On a busy day, it was easy for the pharmacist to grab the wrong bottle.
Now the different dosage levels are in different colored bottles and stocked on different shelves.
Dr. Steve Kraman, the former director of the Lexington VA says that with deny and defend they never would have learned about this problem and would probably still be making the same mistake today which would cost more lives and more money.
Another story of learning, from the University of Michigan Hospital System.
A women underwent elective surgery and bled to death during the procedure. In their review after wards, Michigan administrators learned some startling things.
The surgeon who operated on the women had been considered “a living legend” in his prime, however, in recent years the nursing pool said they always stocked extra blood when he operated because his patients bled so much.
The anesthesiology department also booked their best people with the surgeon to compensate for his mistakes.
So, Michigan staff learned that no one confronted the “living legend”…they just compensated for his dwindling skills until one day it killed a patient.
Michigan learned all of these things and they are now able to prevent another catastrophic error because they are honest with themselves.
The surgeon will either receive refresher training or retire….either way, the mistakes won’t happen again.
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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 some of the most common ones today:
Challenge: Doctors will become sitting ducks with Sorry Works! They'll get their pants sued off.
Response: The current system of deny and defend makes doctors sitting ducks. Doctors and hospital administrators are left to wonder if an unanticipated outcome will be followed by a process server bringing bad news. That's no way to live. If a mistake occurs, doctors have to ask themselves one question: “Would it be better to handle this situation on my terms or have it fought out by high-priced attorneys in front of a jury of strangers?” Sorry Works! provides the protocol to constructively and positively handle errors and bad outcomes.
Challenge: What if sorry doesn't work? A doctor has just admitted guilt.
Response: A doctor apologizes for an error and offers compensation, but the compensation is rejected and a lawsuit is initiated. So, the doctor will go to court looking like the person who tried to do the right thing by apologizing and making a fair offer, but was rebuffed. The doctor will be the sympathetic defendants and the plaintiff will look greedy, which is not the formula for success in the courtroom if you’re a trial lawyer.
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 patient won, but he was only given $10,000.
Challenge: Lawyers simply file too many lawsuits in my hometown for Sorry Works! to be successful here.
Response: If a region or county is considered to be friendly to plaintiffs' attorneys all the more reason for doctors to implement Sorry Works. Doctors, hospital administrators, and insurers should do everything possible to make sure that patients and families don't leave their offices angry in litigious regions. Sorry Works! provides the protocol and methods to alleviate anger and significantly diminish the chances lawsuits being filed, especially in the most litigious areas. An overly aggressive trial attorney is powerless without an angry, yet sympathetic plaintiff.
Another way to look at this situation….when things go wrong, hospitals and doctors should not want to push people away as they told to do with deny and defend…because they literally push them into the arms of plaintiff’s attorneys….they should work to draw them closer and fix their problems.
Challenge: But not all bad medical outcomes are the result of errors. Sometimes people just die or are injured despite the best efforts of a medical staff. We can't be handing out checks every time someone dies or doesn't heal completely.
Response: People die from medical errors, but not all deaths are caused by medical errors. Many times the standard of care is met, but people still die or do not completely heal. Doctors and hospitals certainly should not be expected to "hand out checks" under these circumstances. However, they still need to communicate with patients and families. This lack of communication and a perception of a cover up causes lawsuits even when the standard of care is met.
Sorry Works! stresses communication with patients and families, including in circumstances when an error did NOT occur. Medical records and charts should be quickly provided to patients, families, and their attorneys. Medical staff and administrators should make themselves available to answer questions, provide insight, and empathize with the patient and family, but a settlement is not required.
If the patient or family attempts to file a lawsuit, the hospital must be clear that it will defend itself vigorously and not settle. This is where Sorry Works! pays dividends. Hospitals that practice Sorry Works! develop a reputation for honesty with local plaintiffs' attorneys. If the hospital plans to contest a case (no apology or settlement), local attorneys learn that such cases are probably without merit and not worth pursuing. We call this effect “The Honesty Dividend.”
Challenge: Dr. Kraman developed Sorry Works! in a VA hospital. It will never work in a private hospital.
Response: Kaiser Hospitals and Catholic Healtcare West show this to be untrue. Furthermore, as more and more hospitals become captive insurers, Sorry Works! will become easier to implement. Insurance companies are also starting to seriously study Sorry Works! too.
Challenge: Aren’t you asking patients to give up their rights to file a lawsuit?
Response: No, Sorry Works! is not binding arbitration - people still maintain their right to file a lawsuit if they are not happy with the process. Here’s the difference: Tort reform makes it more difficult for people to file lawsuits, whereas Sorry Works! makes it unnecessary to pursue litigation.
I understand there is some talk of implementing binding arbitration here in South Carolina. And I know some people like to try to tie binding arbitration to a Sorry Works! protocol.
If I may be blunt with you, don’t touch binding arbitration with a ten-foot pole. If you want the positive results of Sorry Works, you can’t mix in binding arbitration.
Why? Trust and mutual respect are the foundation of Sorry Works! Under Sorry Works! people maintain their right to file a lawsuit, but very few exercise because they are treated fairly and humanely.
If you add binding arbitration to the mix, you break the bond of trust between patients and doctors, build walls, provide reasons to suspect cover-ups and lies, and then litigation becomes the only feasible alternative for people.
I know there is a temptation to monkey with Sorry Works! and try to tweak here and there and make it a little more comfortable for doctors or hospitals, but don’t disrupts the fundamentals of the program or it won’t work.
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As I close my presentation, I want to leave you with legislative suggestions.
As legislators you can provide incentives for Sorry Works! to speed the implementation of full-disclosure programs:
1) Require Sorry Works!/full-disclosure training in South Carolina medical and nursing schools. Also, require that physicians and nurses already licensed receive full-disclosure training as part of their continuing education requirements. Sorry Works! has a powerful, compelling message, and the more doctors and healthcare providers that hear this message, the more that will ask themselves, “Why aren’t we already doing Sorry Works?”
2) Pass apology immunity laws similar to Colorado, Georgia, and Arizona. Physicians will swear they need immunity from apologies and admissions of guilt should a lawsuit arise from a full-disclosure event. Despite stories like the one I told you about from Michigan where the man received the $10,000 original offer, some doctors won’t budge until they have such a law in place. Politically speaking, you should probably pass this legislation because it will be easier to pass the law then trying to explain that it’s really unnecessary.
Here’s the reason….we’re changing a “deny and defend” culture that has been in place for decades and has scarred physicians out their wits for the wrong reasons. Give physicians an immunity law to soothe their fears, but put a caveat in it….allow doctors to decide if they want to bring an apology and previous offer of fair compensation into court. Doctors will learn over time that apologies strengthen - not weaken - their position, and giving up that advantage in court is a foolish move.
And a special message to doctors and healthcare executives here today - if you have a defense attorney who tells you not to mention a full-disclosure event in a courtroom….to make believe like it didn’t happen… fire that person immediately. They are not working in your best interest….they are only interested in raking up billable hours at your expense. Sorry Works! and full-disclosure empower physicians and don’t ever let some defense attorney hungry for your money take away your best defense in court.
3) Pass a Sorry Works! pilot program similar to Illinois
Illinois became the first state in the Union to pass a Sorry
Works! pilot program this spring whereby two hospitals and their doctors and insurance companies get a risk free try at Sorry Works! Under the program, a panel of medical, legal, and insurance experts determines the liability costs (settlements, defense litigation expenses, etc) incurred by a pilot hospital over the last five years. The committee will then look to see if costs go up, remain the same, or go down under Sorry Works! for a pilot hospital. If costs go up, the state picks up the difference the between the old norm and the new norm. If, however, cost go down - as they should - the hospital saves money and state doesn’t pay a penny. The beauty of the pilot program approach is that it removes the doubters excuses for trying Sorry Works, and it provides important exposure for the program.
I’m told the State of South Carolina has some management
over the medical malpractice insurance company that provides coverage for most doctors….so you may be able to implement a Sorry Works! type initiative even faster and quicker than Illinois or other states.
For sure, there will be resistance from some physicians and defense attorneys, but that is where you can provide some help to get them over the emotional hurdle of saying, “I’m sorry.”
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I want to close with a special message for the doctors, healthcare providers, and insurance professionals here today. While I hope your legislators will enact Sorry Works! legislation to encourage apologies and full-disclosure, you don’t have to wait. Unlike tort reform, the beauty of Sorry Works! and apologies for errors is no legislative solution is required. Doctors and hospitals can implement Sorry Works! and honesty programs on their own right now….without waiting for legislators to vote or judges to rule on issues of constitutionality.
Look at the University of Michigan hospital system…look at Children’s Hospital of Minnesota which was featured in Time Magazine last week….neither state has apology immunity laws or Sorry Works! pilot programs, and both hospitals have successful disclosure programs. It works for them…it can work for you too.
You can get up out of your chairs today, go back to your hospital, and do it right now. I will stick around afterwards if you interested in different training programs that are available.
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Thank you for your time attention today….again, I appreciate the opportunity to testify before you today and I would welcome questions and comments. Thank you.
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