Over Paying on a Case? Genesis Burkett Story
At Sorry Works! we have continually talked about the need to get the compensation piece of the disclosure puzzle right. The beauty of disclosure is that it opens up a whole universe of opportunities (economic and non-economic) when trying to fairly settle a case. With disclosure, med-mal doesn’t always to be about the bucks! But, make no mistake, sometimes you will need to pull out the checkbook – but even in these cases the settlement price and associated costs are often less, much less than the norm.
You have to be careful...it's a bit of a fine line. You can't grossly under pay on cases and run a credible disclosure program for the long haul --- you can't rip off people or think that "sorry"absolves you of your financial obligations. You have to be fair. But, you can't over pay on cases either. Enter the Genesis Burkett story.
Earlier this Spring, a news story came out concerning a record $8.25M settlement for the death of a premature baby due to a fatal dosing error at Advocate Lutheran General Hospital in the suburbs of Chicago -- previous record for a similar case in the area was $4M. When I read the headline, I immediately thought the hospital must have covered up and nasty litigation ensued – but the hospital disclosed! The hospital immediately began working with the family. In fact, in touting their record settlement, the PI law firm even told the media that the hospital disclosed and has fixed their processes! One news story said the family was considering forming a charity, but no other details were provided. I was perplexed.
So, I communicated with a person I know at Lutheran General and posed the following questions:
“I am considering writing about this case in an upcoming Sorry Works! e-newsletter, and I would like to get the perspective of you and others from the hospital. It sounds like you did all the right things post-event, but, then, as you write below, the settlement negotiations were a pro-longed affair --- and the end result was a very large settlement that, according to the PI firm, was much higher than the average for the region for similar cases. Even more curious, the PI firm in their press release acknowledged the hospital's good acts of communicating post-event and making system changes to prevent future errors --- but still the record settlement. To be totally honest, when I read the first news accounts, "Baby dies, record settlement," I immediately thought deny and defend...but you quickly disclosed! You were trying to work with the family!
I'm curious about the thinking that went into the settlement. Obviously, this was a tragedy, but from a practical standpoint there will be no on-going expenses. Nor was a bread winner of the family killed. Is there more to the story than just money...something we are not seeing in the news reports? Are the hospital and family working together? Is the family using the funds for patient safety efforts, and the hospital knew this going into the settlement? Or was the demand always high and no discussion of working together, patienty safety, etc? Did you ever consider having your counsel argue the case on damages?
I'm sorry to focus on money...but you know people are going to focus on this. It's our reality. And there is a perception your hospital over paid on this case. It's rare that a disclosure case nets a record settlement according to a PI firm....there's almost always a discount from the PI firm for the shorter transaction period. Share with me what you can, including can you dispel the notion of overpaying?
This is an important case for the disclosure movement because of the publicity. Probably need to write about it. That said, I'm not a "gotcha guy." I have plenty to write about over the next few weeks, so consider these questions and please get back to me in due time. I look forward to hearing from you."
After several follow ups with the hospital, I finally received the following response:
"Thanks for reaching out to us, but we have already been very transparent about the details of this case with the media and have nothing more to add. Our prayers continue to be with the family and they continue the healing process. Our top priority is to provide the highest quality of care, and we will use this painful event to improve and strengthen safety protocols."
Very disappointing. It appears the hospital may have over paid, but we don't know for sure because they won't provide additional details. Now, I have criticized people/companies in this space in the past and have always offered them a chance to respond, and at least one company has taken me up on the offer. I make the same offer to Lutheran General.
In conclusion, let this story and column be a lesson. In perfecting your disclosure program, you need to get compensation piece right. Can't under pay...and can't over pay. You are not an ATM machine. You have to think about these issues ahead of time and make it right for everyone.