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By Doug Kauman
April 30, 2004
ST. LOUIS (MD Consult) - With skyrocketing malpractice insurance costs and hefty law suits forcing some doctors to relocate or change careers, some believe it's time for the medical profession to learn the power of apologizing for medical errors.
"Doctors, truly and genuinely, because they are in the healing profession, want to do that," said Tom Denton, a spokesman for Victims and Families United, which represents victims of medical errors. "But the first thing that happens in a medical error is, their attorney says, 'Circle the wagons, keep your mouth shut and don't say anything.' Now, if we can just circumvent that by saying, 'Mistakes do happen, and they (can) happen to the best trained doctors working under the best circumstances. And when they do, we want to make that right.' It removes the anger, it gives the defense attorneys nothing to do, ... but the victims remain whole."
This idea is gaining acceptance with individual hospitals and such influential organizations as The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) and the Institute of Medicine, according to Dr. Steve Kraman, who helped pioneer the concept starting in 1987 at the Lexington (KY.) Veterans Administration Medical Center.
"Generally, it's gotten a lot of attraction," Dr. Kraman said. "It's not spreading like wildfire, ... but we have run into hospitals where they are doing at least some of it."
The Lexington VA adopted a straightforward policy of admitting mistakes and offering fair settlements, Dr. Kraman said.
"We started to have risk management meetings to try and get a handle on liability. ... We just decided we needed to be ahead of the curve, instead of behind it, because there's a two-year statute of limitations ... and people tended to sue at the very last minute," said Dr. Kraman, who spent 16 years as the chief of staff at the Lexington VA and is now vice chairman of the department of internal medicine at the University of Kentucky (Lexington) School of Medicine. "By then, we have residents who will have left, people would forget things."
Based on what the Lexington VA has accomplished, Victims and Families United (VAFU), based in Glen Carbon, Illinois, has created a version of the VA concept called "Sorry Works."
"Sorry Works gets to the heart of the medical malpractice crisis," VAFU spokesman Doug Wojcieszak said in a news release. "Patients and families don't expect perfection from doctors, but they do expect honesty, especially when things go wrong. Unfortunately, too often doctors and hospitals deny, defend and clam up when mistakes happen, and the only way families can get answers is to file a lawsuit."
Medical errors can get very expensive if they lead to lawsuits and court time.
"If the hospitals and the attorneys stopped treating this as if they were criminals, and clamming up, and essentially acting in a way that seems almost designed to inflame the victims of medical errors, then they won't end up in court," Dr. Kraman said. "The whole thing just gets a lot cheaper.
"What you really want to do is keep out of court," Dr. Kraman said. "That's been our experience. We ended up going to court for trials, on average, once every five years after we started doing this. That was three times in 15 years, One of those times was because we couldn't come to agreement with the family of a patient who died. We were never able to agree on a compensation package. So we had to go to court for damages.
"But still, what they ended up getting was basically the same as what we offered them, anyway," he said. "But still, when you go to court, the cost of litigation is very high - hundreds of thousands of dollars. That's even if you win. ... If you can compensate people fairly for what they are really owed, and do it out of court, you save a huge amount of money."
The initial risk management policy at the Lexington VA began as a way for the hospital to keep on top of mistakes and address them in a timely fashion.
"What we wanted to do was get information about these adverse outcomes, whether they were malpractice and negligence or not," Dr. Kraman said. "Just find out about them, investigate them, take testimony when people's memories are still fresh. Then file them away in case we were sued. That's really what we were thinking about at the time."
About a year after they started this risk management procedure, a case developed that brought the policy into practice.
"This woman was in the hospital and she died," he said. "We thought it was just one of those things - she was sick and died suddenly. We didn't think much about it."
Upon further review, Dr. Kraman added, "an incidence of negligence" was discovered that "caused her to have a lethal dose of a substance that was in her I.V."
The family had claimed the body and was in another state. The risk management committee, meeting a couple of weeks after the death, discussed the options.
"We just didn't think that we should just sit on this, because there was just no question that it was negligence," he said. "It was a wrongful death. We decided as a group that we were going to contact the family and disclose the information."
The committee invited the family to come to the hospital and bring an attorney. When they arrived, Dr. Kraman and the hospital's attorney talked with the family.
"(We) told them exactly what happened, how we knew it happened, and that we felt we owed them compensation, because had this accident not occurred, their mother would not have died," Dr. Kraman said.
The attorneys for the hospital and the family negotiated for a few weeks and came to "a reasonable settlement," Dr. Kraman said. "We paid it, and that was it. We thought this was a reasonable way to do these things. We felt good about it, that we didn't have to worry about something surfacing years later that we had hidden. So that's what started the whole ball rolling, and we started handling things like that consistently from then on.
"We didn't really think what the monetary consequence was going to be," he said. "We didn't really care at that point. But after several years, we got the impression that it wasn't very expensive. There were lots of cases, but they seemed to be pretty inexpensive."
In 1997, Dr. Kraman accessed data from all the VA hospitals, "did some number crunching, looked at how many cases they were getting and what their payouts were and compared that to our own," he said. "I found that, indeed, we were paying more cases, but they were cheaper. Overall, our payouts per year were roughly in the lower quarter of a big group of similar hospitals."
Dr. Kraman's hospital published the results, which stirred a lot of interest.
"In 2001, the Joint Commission (JCAHO) made this risk management behavior into one of their standards and requires hospitals - sort of requires hospitals - to do it," he said. "It's a little watered down because they don't have control over insurance companies in the private sector. But there's been a lot of support for it. The Institute of Medicine supports it, in their second report on medicine in the United States."
The combination of apologizing and offering fair compensation is seen as common ground where victims and hospitals can meet and both walk away satisfied.
"The thing about Sorry Works as it was demonstrated ... in the Lexington model is it actually tended to diminish the number and frequency of suits and the dollar amount of settlements," said VAFU's Denton. "Now, ... you might say, 'Aren't you kind of cutting your victims short?' No, we don't see it that way, because it's for the actual damages."
Victims of medical errors, Denton said, expect and appreciate an apology.
"I think Dr. Kraman will tell you, what he knows from his experience, is it tends to remove the anger," Denton said. "The solution is so simple."
So, Dr. Kraman said, is the name "Sorry Works."
"What I don't like about (the name) 'Sorry Works' is it puts too much emphasis on the apology," he said. "That's just part of it. The compensation is equally important. I don't see any way you can face somebody and say that we made a terrible mistake and caused you a terrible loss and we're very sorry about it and then walk away. If you cause somebody a loss, you really have to try and make amends. That's what the program does."
The reaction among patients who have received apologies and compensation from the Lexington VA has been "very interesting," Dr. Kraman said.
"Some of them come in expecting to get the run-around and have doors slammed in their face, or to be lied to," he said. "I've seen people come in, and you see, their jaws are set. Just by their body language, you can see they are very skeptical. That usually lasts no more than 10 minutes. Once they see that they're getting all the information, everything they need, everything there is, the anger just evaporates. What happens is people really would much rather feel good about their doctors and their hospitals. And only get angry when they feel betrayed."
Honesty and an open discussion about the mistake, combined with a genuine apology and compensation, will work wonders.
"In almost every case, and we've done this, it must be 200 times, they're pleasant," Dr. Kraman said. "We end up, after a meeting, shaking hands, hugging. Most all of them behave in a very rational and decent way afterwards. They basically respond in kind. And even their attorneys respond in kind."
This is what Victims and Families United has pitched to the Illinois legislature - establishing pilot programs at Illinois hospitals.
"We're looking for two hospitals, one in northern Illinois and one in southern Illinois, ... that would be willing to risk the implementation of what we describe as Sorry Works," Denton said.
The program as proposed by VAFU would include a guarantee.
"If you implement the program, and provide full and complete disclosure up front, and ultimate settlements of any medical errors, the state would guarantee that during a two-year trial period, ... any increase over what they had paid in the prior two years without the program would be picked up by the state of Illinois," Denton said. "So the good news for the hospital is they risk nothing. The good news for the state is, if it works, they don't pay anything."
This type of state-supported program could be "extremely educational," Dr. Kraman said.
"I think what they would find is those hospitals are going to be doing very well and they're not going to want to stop," he said. "That could be a very powerful thing, even nationwide. Because right now, I'm certain there are hospitals doing this. But they don't talk about it because talking about medical errors and liability is not the kind of thing patients want to hear when they're trying to decide where to go."
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