Doug Wojcieszak, Founder & Spokesperson
July 8 2009
Contact phone/e-mail address: 618-559-8168; doug@sorryworks.net
Over the last two weeks we at Sorry Works! have weighed in on liability reform and its piece of the healthcare reform debate currently heating up in Washington, D.C. and across the United States. There is one particular aspect of this issue we want to focus on today- and it's a hot topic among physicians: Not being sued when a doctor followed guidelines. Considering the following quote given to the New York Times from the incoming President of the American Medical Association:
"Dr. Rohack said, recounting the conversation, "if we as physicians are going to say, 'Here's our guidelines, we will follow them,' then we need to have some protections. He (President Obama) listened and he said, 'Clearly, that concept is worthy of discussion.'"
Physicians have long complained about frivolous - or non- meritorious - lawsuits. Being sued when they did their job. And even though physicians "win" the vast majority of such cases, docs and their insurers spend a lot of time and a King's ransom to beat back such litigation. So, the AMA and other medical groups asking for some sort of protection with such cases seems reasonable and understandable. The bad baby case where the doc did everything possible, but the parents of the crippled child who are staring bankruptcy in the face take a shot in the courts to salvage their lives. Not anymore with such legislation believes the AMA and others. Maybe not.
The old cliche goes, "The devil is always in the details." Who's to say what the "guidelines" are? And even when "guidelines" are established, how exactly do we know if the doctor truly followed the so-called guidelines? Oh, this sounds like another field day for lawyers, experts, and everyone else who bills by the hour. Cha-ching,cha-ching...cha-ching! Might be more of a nightmare than a solution.
Instead of trying to craft legislative fixes to prevent docs getting sued when they follow some set of standards or guidelines, perhaps we need to ask why physicians get sued - especially when they follow the so-called guidelines?
Perhaps we can find the answer to this question in a movie: "Nights in Rodanthe." Huh? Hang in here with me. This 2008 romance movie actually has a powerful message about medical malpractice for physicians. The leading man - Richard Gere - plays a doctor who lost a patient and was later sued by the widower. The doctor sent his nurse to her inform the husband that his wife died, and never spoke to the man again - until the lawsuit was filed! Against advice of defense attorneys and the insurance company, the doctor meets the widower. The first meeting didn't go well, with the physician babbling about how he did everything medically possible for the man's wife, and the widower responding with a devastating question: Do you know the color of my wife's eyes? Gere's character had no response.
Later in the movie while squabbling with his lover (Diane Lane), Lane's character tells the doctor that the widower wasn't looking for a medical explanation; he simply wanted to know you cared. A little later in the movie the doctor and widower sat down for another meeting...the husband told the doctor all about his wife, including how she had a growth on her faces for years that she wanted Gere's character to remove so she would look "pretty" for her husband - even though he (the husband) didn't think it was necessary and didn't want his wife to risk a surgery. The doctor said he was "sorry" she died, and all was well.
I know...I know...it's the movies, right? Wrong. I was told by countless risk managers to watch that movie: "Hey, Doug, rent this movie...you have to see it. There's a love story in the movie, so you wife will enjoy it too!" (For record, she did!) Think what you want about the romance characteristics of the movie, but it hit the issue of doctors following guidelines and later getting sued right on the head. It's usually not about the medicine - it's about the relationship, the empathy, showing you care, the "sorry," staying connected with the patient/family, trying to fix problems, and so many other things. It's the emotional stuff - not the science!
Unfortunately doctors are typically scientists who...er...well...are often greatly lacking in the emotional department. Is it any wonder why we have so many non-meritorious med-mal lawsuits?
Every medical student should be required to watch the movie, as should every doctor who thinks some legislation saying that physicians won't get sued for following some standards will actually make a difference.
No doubt that non-meritorious litigation is a HUGE cost factor in the medical liability world, but another legislative push is probably not the answer for the type of dramatic results rightfully yearned for by the AMA and other groups. No, we need to teach doctors how to have difficult conversations post-adverse event and give them the tools to stay engaged with patients/families. This training will stop most litigation before it gets started, and even in those instances where a family still visits a trial lawyer, the "plus factors" (disappearing doctor, bad customer service, etc) will be absent.
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