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September 20th, 2007 NEWSLETTER
Doug Wojcieszak, Founder & Spokesperson
Contact phone/e-mail address: 618-559-8168; doug@sorryworks.net
THIS WEEK'S EDITION:
- Insurance angle on apology laws - must read!
- Premier Law Firm + Sorry Works! = THE book on disclosure
- Sorry is worth a million dollars - another must read!
INSURANCE ANGLE ON APOLOGY LAWS - MUST READ!
Below is an article that ran this week in the Boston Globe about the medical community in Massachusetts working to get legislation that would make statements of fault (i.e, we're sorry, we cut off the wrong leg") made by a doctor inadmissable in court. Currently, Massachusetts laws make expressions of sympathy or remorse inadmissable. Of course, Bay State physicians are insisting they need this enhanced protection before they can apologize to patients and families.
Regular readers of this newsletter know that Sorry Works! says that they apology laws have good PR value (they make docs more comfortable about apologizing) but they have little legal value. Disclosure done right creates powerful, positive evidence for the defense if a lawsuit is still pursued. Now consider the following quote from the Boston Globe article below:
- "Executives at ProMutual Group and CRICO/RMF, the state's largest malpractice insurers, which encourage doctors to be honest with patients, said they have never seen a plaintiff's lawyer use such statements as evidence. Some patient safety leaders believe this is because patients don't sue doctors who are honest with them about what went wrong."
Think about it...two major insurers are saying they've never seen "sorry" come back to haunt a doc in court. Why? Because a plaintiff's attorney job is to demonize a physician in court, and telling the jury the doc said "sorry" and tried to fix the situation doesn't fit the game plan. Please share this information with physicians, residents, medical student, nurses, technicians....all providers who may need to apologize to a patient or family at some point. They need to understand this basic information! The take home message is providers do NOT need a law - any law - to apologize. It's always been "OK" to say sorry. Apology and disclosure done right under the auspices of a program will always benefit providers as well as their patients and families.
The entire article is directely below.
Doctors say they need protection to apologize
By Liz Kowalczyk, Globe Staff
October 31, 2007
Consumers, insurers, and regulators are pushing for openness about medical errors, but Massachusetts doctors believe they need a change in state law so what they say cannot be used against them in a court of law.
The Massachusetts Medical Society, which represents 18,000 of the state's physicians, is lobbying legislators for a special legal exemption for any doctor who apologizes to a patient and admits making a mistake: The statements could not be used as evidence against the doctor in a medical malpractice case.
Even though patient safety leaders are encouraging doctors to say "I'm sorry" as a way to improve relationships between them and their patients, many physicians avoid these discussions because they fear being sued, said Dr. Alan Woodward, a past president of the medical society and an emergency medicine physician in Concord.
"There's a culture of secrecy," said Woodward, who has been meeting with legislators to advocate for a change in the law. "The defense attorneys tell you you can't even talk to your spouse. That anything you say to anyone in any environment will be used against you. We're trying to reverse that culture."
The medical society supports a bill filed by Senator Robert A. O'Leary, Democrat of Barnstable, which would make any acknowledgement of error by a physician inadmissible in court.
A bill proposed by Senator Richard T. Moore, Democrat of Uxbridge, would create a "Health Apology Pilot Program," which would make statements of guilt inadmissible only for doctors and hospitals that promptly acknowledge and apologize for mistakes and agree to offer injured patients "fair settlements" that would have to be negotiated with the patient's attorney.
The Legislature held a hearing on Moore's bill last month; a hearing date has not been scheduled for O'Leary's legislation.
The state's trial lawyers oppose giving any doctor a special exemption.
In Massachusetts now, general expressions of sympathy when someone is injured, be it in a car accident or a hospital, are not allowed as evidence in personal injury lawsuits.
"If I get out of my car and say, 'Are you OK?' or 'I'm sorry you're in pain,' that is not admissible," said Paul Leavis, president of the Massachusetts Academy of Trial Attorneys. "If I get out of my car and say, 'I'm sorry I rear-ended you,' that is admissible."
The rules should be no different for doctors, he said. Otherwise, a doctor could admit his guilt to a patient at the same time a jury finds him innocent. "If they're responsible for causing harm, they should be held responsible," Leavis said.
The battle is being fought across the United States. Four states - Arizona, Colorado, Connecticut, and Washington - have approved broad laws that allow doctors to admit fault without worrying about their admission being used in court, said Dr. Thomas Gallagher, an internist and professor at the University of Washington in Seattle who studies the issue.
It is unclear how often doctors' apologies are used against them in malpractice lawsuits. Executives at ProMutual Group and CRICO/RMF, the state's largest malpractice insurers, which encourage doctors to be honest with patients, said they have never seen a plaintiff's lawyer use such statements as evidence. Some patient safety leaders believe this is because patients don't sue doctors who are honest with them about what went wrong.
But, Almor Afonso, vice president of claims at ProMutual, said the reason could be that "doctors don't feel comfortable having these conversations because they have no protections."
"Doctors are very confused," said Dr. Tom Delbanco, an internist at Beth Israel Deaconess Medical Center who recently made a film, "When Things Go Wrong, Voices of Patients and Families. "Some (people) tell them to open their hearts and spill the beans. Others tell them to keep their mouths shut. It depends on the lawyer."
A change in the law, he said, would help clear up the confusion.
Liz Kowalczyk can be reached at kowalczyk@globe.com.
PREMIER LAW FIRM + SORRY WORKS! = THE BOOK ON DISCLOSURE
Disclosure is a hot topic today, but how do you do it? More importantly, how do YOU get past the concerns and fears of your defense attorneys, claim managers, and other critics who think saying "I'm sorry" will lead to more lawsuits? The Sorry Works! book is THE answer.
Sorry Works! has teamed up with James W. Saxton, Esq., and Maggie M. Finkelstein, Esq. of Stevens & Lee, a premier healthcare and risk management firm to produce THE book on disclosure and apology. As lawyers who have defended doctors, hospitals, and insurance companies throughout the country, Jim and Maggie bring an important and unique perspective to disclosure and apology. With absolute credibility they can address the fears and concerns about disclosure and apology and teach healthcare, insurance, and legal professionals how to disclose in the right way and at the right time.
In short, the Sorry Works! book will be the "how to" manual on disclosure and apology. Everything from why disclosure works to developing a policy and program will be covered; however, the text will be limited to 100 pages so even the busiest healthcare professional will be able to read it on a plane ride or over a weekend. Furthermore, a CME test will be offered with the book.
The book will be released late November. The retail price per book is only $21.95, and bulk discounts are available too. To pre-order your copy of the Sorry Works! book today or inquire about bulk sales please contact Amy Matthias at ajm@stevenslee.com or call Doug Wojcieszak at 618-559-8168.
SORRY WORTH A MILLION DOLLARS - ANOTHER MUST READ!
'Sorry' is worth a million dollars
(http://www.post-trib.com/news/hayes/627264,dianecol.article)
November 1, 2007
Diane Aden Hayes
I'm sorry.
Really, I'm truly, deeply sorry.
I don't know exactly what I did, but I am so sorry.
I'm not apologizing just because I'm a nice person. Nor because I've done anything in particular wrong.
But I did read a story in Fortune magazine online that says people who apologize the most make the most money.
A Zogby International poll of more than 7,500 Americans says that's how it works. "A person's willingness to apologize was an almost perfect predictor of their place in the income ladder," according to the pollsters.
Note they didn't say those high-wage earners were wrong more often. They just tended to take the blame, or admit their share of it.
So now you know why I am so very, very sorry.
And will be as sorry as possible for as long as it takes to move up the income ladder.
* * *
But an apology alone isn't really worth much. You can say you're sorry, but if you aren't willing to fix the problem, you've done only half the job, I think.
So I try to practice asking, "What can I do to make it right?" when I apologize.
Such a statement can of course help a situation immensely. But there's a nasty little side of trying to be so helpful.
Because some people don't want you to fix things. They just want to complain. And complain. Until they've practically worn your ears off.
When you offer to make things right, these types are flummoxed. They won't tell you what to do because they really don't want you to do anything but listen to their grievances.
That's when you can revel in smugness, knowing you are not only nice, but you take the high road, while they just bluster.
Sometimes, being sorry isn't so hard at all.
* * *
But for some, sorry is next to impossible. Which is why I keep finding myself thinking about Marion Jones, the former Olympic athlete.
She recently admitted she'd taken a steroid when she competed in the Sydney Olympics in 2002, where she won three gold medals and two bronze in track events.
Even though I gave up being a sports fan years ago, I took the news about Jones hard. If I'm going to find any athlete interesting, it's going to be a tough, successful woman like Jones.
But in one news report, my interest ended. I had believed her denials of steroid use over the years, and I felt hurt by her admission.
It seemed like she'd been lying to me personally as well as the rest of the world.
I'll never understand the need to win being so strong that cheating is required, any more than I'll understand the compulsion to lie.
And the people who display those behaviors, I can't fathom at all.
Jones seemed to think admitting guilt would make a difference, along with potential jail time. I think she even said she was sorry.
That might appease government and sports officials, but what will Jones do for the rest of us? Is there anything she can do for us besides apologize?
I guess I'm more like the complainers than I want to admit. I don't know what she can do to make things right.
And for that, I'm really sorry.
Contact Diane Aden Hayes at 648-3241 or dhayes@post-trib.com
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