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IN THIS EDITION:
- National Law Journal Article!
- AAMSE's Wall of Silence
- PhRMA meeting
- Lessons from Down Under
- Delaware Goes Sorry
- Got something to say? Send your contribution today!
National Law Journal Article!
One of the lead stories in this week's National Law Journal is about apology and disclosure in medicine and Sorry Works! provides the lead quote. Our friends at the University of Michigan Health System, Children's Hospital of Minnesota, and Johns Hopkins are also prominently featured in the article. Great article - check it out below.
National Law Journal Online
Emerging med-mal strategy: 'I'm sorry'
Peter Geier
Staff reporter
July 14, 2006
Doctors' apologies for medical mistakes may not be a cure-all for litigation, but explaining unforeseen outcomes and making early settlement offers have proven effective, say lawyers who have participated in the process in the last decade.
The concept is called "full disclosure/early offer," and it's spreading.
The U.S. Department of Veterans Affairs Veterans Health Administration-as well as a number of hospital systems and insurers across the nation-are among the entities that have adopted variations of the policy.
Two states-Illinois and Vermont-have recently passed legislation providing for pilot programs to test the efficacy of full disclosure/early offer policies. Tennessee, Texas and New Jersey may soon follow.
The concept also is being promoted as a solution to the national debate over medical liability between tort reformers who would create an administrative system of "health courts" and the plaintiffs' bar and its supporters.
Senators Hillary Rodham Clinton, D-N.Y., and Barack Obama, D-Ill., are currently sponsoring the National Medical Error Disclosure and Compensation (MEDiC) bill, a national version of the full disclosure/early offer policy.
Plaintiffs' and defense attorneys agree that the program-often referred to as Sorry Works! from The Sorry Works! Coalition, a Glen Carbon, Ill., advocacy group-is a sound strategy miscast in the public perception as a touchy-feely ritual.
Sorry Works! founder Doug Wojcieszak said that health care providers "willing to admit when they have made an error and quickly get on top of it...cut down on the anger that leads to litigation."
"Patients bring lawsuits when they can't get answers," Wojcieszak added.
Chris Mather, spokeswoman for the American Trial Lawyers Association in Washington, acknowledged positive aspects in Sorry Works! programs, such as doctors' apologies and letting people know what happened to them or a family member while in a health provider's care.
However, ATLA is concerned that in some instances the statute of limitations clock could be ticking while such processes are under way, that there is no requirement that patients be told that they can bring their own attorney and that statutes that protect doctors' apologies could be expanded to protect incidents, Mather said.
Key is open exchange
Although health care providers and insurers sometimes make their disclosures to unrepresented patients, lawyers say that the key to the policy lies in the open exchange of information, particularly between experienced counsel, that enables the early settlement of meritorious claims.
The hospital systems participating in the program include the University of Michigan Health System in Ann Arbor and Baltimore's Johns Hopkins Medicine. Insurers include COPIC Insurance Co. of Denver, and West Virginia Mutual Insurance Co. of Charleston, W.V.
Richard C. Boothman, chief risk officer for the University of Michigan Health System, which implemented its program in 2002, said that "this is not about making apologies, it's about being honest."
"Transparency, honesty and open discussion all make sense to intercept patient claims that become litigation, because once they become litigation, they take on a life of their own," he said.
Boothman came to this realization in his prior private defense practice representing the University of Michigan and the Cleveland Clinic Health System, when "I kept seeing opportunities missed by trying to be smarter in claims handling," he said.
The key is knowing the difference between reasonable and unreasonable medical care: If a health care provider made a mistake, the institution steps up right away and tries to do the right thing, he said. But if it believes there was no mistake, it's ready to fight.
And rather than focus on medical malpractice, emphasis is placed on improving patient safety and physician-patient communication- educating a patient as to the nature of his claim and why it may or may not be a compensable error, Boothman said.
"Do this, and medical malpractice litigation goes away or is reduced to background noise,"he said.
A drop in claims
According to Boothman's testimony to the U.S. Senate Committee on Health, Education, Labor and Pensions last month, claims against the University of Michigan have dropped every year since 2001 despite increased clinical activity over the same period.
In August 2001, there were 262 total claims, ranging from presuit notices to active litigation; in August 2002, there were 220 total claims; 193 claims in August 2003; 155 claims in August 2004; 114 claims in August 2005; and since that time, the total number of claims has fallen to fewer than 100, Boothman said.
Within the same period, the university has cut its average claim- processing period from 20.3 months to 9.5 months, halving its average litigation costs. Also, its total reserves on medical malpractice claims dropped by more than two-thirds, he testified.
Linda D. Turek a partner at Sachs Waldman in Detroit; Peter A. Davis of Davis & Kuhnke in Ann Arbor; and Robert A. Tyler of The Tyler Law Firm in Southfield, Mich., have handled several cases with Boothman and respect his method-even if they don't always agree with his assessment.
Turek, a former emergency room nurse, said that the downside of settling cases is not giving her clients the chance to let a jury hear their story, which is an important part of the process to them, she said.
Turek and Tyler both said that they used the full disclosure/early offer policy approach with defendants in other cases.
"It's not the typical approach but it can be done when you've got experienced lawyers on both sides of the fence in a matter," Tyler said.
Davis said that Michigan's courts have become unfriendly to plaintiffs over the past decade and that, generally, hospitals, doctors and insurance companies often don't respond to notices of intent to file an action, which plaintiffs are required to file six months before they file suit.
"But with Boothman and the University of Michigan, we don't have to serve notice," Davis said. "We call him and send him the file and charts-or he comes over to our office and looks at them-and the process begins right away."
Davis added that "[w]e understand the process really well, and have a pretty good idea as to which claims will settle and which won't. If there's little chance of settlement, we don't take the case."
A credibility boost
Mary P. Foarde, general counsel of Minneapolis-based Allina Hospitals & Clinics, a not-for-profit network of hospitals and clinics, said that Allina's disclosure program "started in late 2001, when we had a very bad case and were gun- shy about trying cases."
Allina's program involves a philosophy similar to Boothman's- straight talk about mistakes and compensation offers, a vigorous defense of cases in which it believes no mistake has been made and using lessons learned to improve patient care.
Allina maintains that the policy of full disclosure/early offer and not settling bad cases "helps our credibility when we do decide to fight a case, and also deters people from suing us on shakier cases," she said.
Chris A. Messerly a partner in the Minneapolis office of Robins, Kaplan, Miller & Ciresi and president elect of the Minnesota Trial Lawyers Association, said that if Allina "believes a case has merit, they're quick to resolve the case," adding that his firm settles most of its cases against it without filing a lawsuit.
Michael A. Stidham, whose Jackson, Ky., practice includes representing Department of Veterans Affairs (V.A.) patients, has settled three cases with the Veterans Affairs Medical Center in Lexington, Ky.-two on the same morning-and lost a bench trial in a medical malpractice case that involved a suicide.
Stidham said that he likes the system and thinks that its wider application could help to reduce docket backlogs. In contrast, a case against a local hospital can take three to four years to get to trial.
"The only thing I really find lacking in it at this point is that I don't believe they tell the prospective plaintiffs that they have the right to discuss their offers with an attorney. A lot of men and women don't understand why they're receiving these offers," he said.
Stidham noted that "I didn't always get everything I wanted, but I didn't leave with a bad taste in my mouth, and left with a satisfied client, which is the most important thing."
The 'golden rule'
Ginny M. Hamm, the special assistant U.S. attorney assigned to the V.A. medical center in Lexington who worked with Dr. Steve S. Kraman, former hospital chief of staff, to introduce a centerwide disclosure program in 1987, said that a full and lengthy explanation always precedes an offer.
Since Hamm did her first disclosure case in 1989, the "golden rule" has been to tell veterans or their families that they should seek counsel when the hospital meets with them to disclose what went wrong, she said.
Kraman, as chief of staff, would speak to the veteran and his family on behalf of the entire medical center, offering an apology and explaining the error, then "hand off to me for the settlement," she said. Hamm added that if the V.A. determined that no mistake was made, it would hold a "closure" meeting explaining its finding to the veteran.
Kraman, who now serves on the board of The Sorry Works! Coalition, said that he was aware of only two cases in which angry patients sued for damages.
"The vast majority of people respond in kind. If treated honestly, they don't even want money. They want to see that some good comes out of a bad situation," Kraman said.
Joanne E. Pollak, general counsel of Johns Hopkins Medicine, said that while Hopkins has had an official full disclosure/early offer policy in place for about three years, it had already been working unofficially with families and their lawyers to resolve claims before starting the program.
"When something unexpected happens to a patient in Hopkins' care, Hopkins either tells the family what happened if it knows or, if not, it investigates what happened and gets back to the family with the facts after it has completed its investigation," Pollak said, adding that a doctor's apology is not part of the procedure.
Robert J. Weltchek of Weiner & Weltchek in Lutherville, Md., noted that the settlements "don't happen in one fell swoop, more like in two stages."
"The first thing is to get the doctors out of the case," he said. "The hospital does this because they're salaried employees of the hospital, and chances are it's going to end up paying the judgment anyway, whether the doctors are sued individually or not." Weltchek said.
"Hopkins usually steps up to the plate for the doctor, but admissions of liability and being sorry never have been part of my dealings with them," he said, adding that taking the doctors out facilitates the negotiations because it "takes the personal out of the case. Hopkins is very good at keeping the emotion out of it."
AAMSE's Wall of Silence
Last week we informed you, our readers, of an unfortunate set of circumstances with the Ammerican Association of Medical Society of Executives (AAMSE). To quickly recap, back in December 2005, AAMSE invited Sory Works! to speak at their July 2006 conference in Montreal. However, four weeks ago AAMSE pulled the plug on the Sorry Works! presentation, first saying it was too controversial, then changing stories to say it was merely a scheduling change and so sorry we told you late. We protested, but to no avail.
We received many supportive e-mails from our friends and members over the last week expresssing outrage and anger over AAMSE's behavior. We appreciate the support. However, we didn't hear anything from AAMSE. Nothing. Silence.
This is the type of behavior that victims and families of medical errors experience every day. A mistake is made and the medical professionals turn their backs and cut off communication. Is it any wonder victims and families seek answers and closure from other sources, namely plaintiff's attorneys and the courts? Strange that a group like AAMSE which claims they want to educate their members on disclosure behaves in this manner.
It looks like Sorry Works! won't be on the agenda at next week's AAMSE conference in Montreal, and that's a shame for AAMSE members who wanted to hear our message. But, perhaps this episode can become a teachable moment with greater value than one presentation at a conference. Namely, we hope medical, legal, and insurance professionals will see their colleagues acting badly and understand there is a better way to handle mistakes, quell anger, and curb litigation.
Sorry Works! travels to individual states and organizations all the time - if any AAMSE members want to schedule a Sorry Works! presentation for their members in their own states, please call 618- 559-8168 or e-mail doug@sorryworks.net.
PhRMA meeting in Huntington Beach, CA
Many of the folks and organizations attending the AAMSE meeting in Montreal will also be in attendance at the PhRMA meeting in Huntington Beach, CA July 31 through August 2nd. Sorry Works! will be part of a panel discussion at the PhRMA meeting, and this will offer a 2nd chance for AAMSE members to hear what they weren't allowed to hear in Montreal.
Lessons from DOWN UNDER
Sorry Works! spokesperson Doug Wojcieszak just returned from the land down under: Australia. Wojcieszak made two presentations on Sorry Works! to the Australasian cataract surgeons and was well received. Thank you to our new friends in Australia - what a beautiful country full of friendly people.
In preparing for the trip, we did a little research on the Aussies and found some striking similarities to the States. They have a medical malpractice crisis with the same issues and "solutions" as our own here in the States. Too many lawsuits, awards are skyrocketing, insurance premiums are too high, and tort reform is needed say the Aussie docs. Sound familar?
There is one big difference, however. The Australians adopted a national disclosure policy a few years ago. The policy is just beginning to be implemented and encourages medical professionals and healthcare facilities to disclosure and discuss adverse events with patients and families. It encourages communication and contact with families, all positive things. However, there is one glaring problem with their disclosure standard: The Australian government actually discourages medical professionals from admitting mistakes and accepting liability for an error, mistake, or system break down. Aussie docs are told NOT to say the following:
- "I'm sorry - I appear to have made an error in judgment."
- "I apologize for this mistake."
- "It is my fault this happened."
Yet, these are the statements patients and families want to hear most after an error or medical mistake. If these words and statements are not forthcoming, patients and families will become angrier and more likely to pursue litigation. Please note: We at Sorry Works! believe medical professionals should apologize and accept fault only after a root cause analysis (possibly involving outside experts) has shown fault. When a mistake has happened, medical professionals must own the mistake and made amends, including fair, upfront compensation for the victim or family.
And just like the States, our research showed the Aussies say fear of litigation prevents their healthcare professionals from admitting mistakes. But if litigation is the concern, admitting mistakes and fixing the problems of patients and families is the best way to avoid lawsuits.
However, if no mistake happened - it was just an adverse event with no negligence - doctors and medical professionals still must communicate with patients and families. Consider the passage below from an Australian plaintiff's attorney. American trial lawyers say the same all the time:
"I had numerous experiences where our firm would review a file an, in what we called the "sorry, we can't take your case because we don't believe there was malpractice" letter, I would explain just what had happened or what we had been able to piece together. On many occasions I would get a tearful "thank you" from patients and families because they finally had answers to their questions. "No one would say "I'm sorry this happened to you," and that more than anything made them angry. I found it incredibly sad...that the only place a patient or family could get answers to questions was a plaintiff's lawyer."
Delaware Goes Sorry
Delaware is the latest state to pass apology immunity legislation. Delaware House Bill 412 passed recently and awaits the Governor's signature. Thank you to Michael Duva, Director of Health Policy for the Delaware Healthcare Association for passing along the information. Thanks, Michael!
Got Something to Say? Send a contribution today!
If you have something - anything - a story, column, or experience with disclosure you want to share with thousands of other people across the United States and around the world please send it to doug@sorryworks.net. We have had many great guest columns from Rick Boothman and Dr. Steve Kraman & Dr. Barry Silbaugh to name a few.
We can't promise we'll use everything, but we will read and review all submissions. Thanks!
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