One thing every Certified Legal Nurse Consultant knows is that a simple apology by a healthcare provider often goes a long way in disarming anger in patients. But what if a doctor or representative of a healthcare facility were to apologize to a victim of medical malpractice? Do you think that might reduce the number of lawsuits and the associated costs of litigation? It actually does (and that saves us all money)!
“Sorry Works!,” a self-professed “advocacy organization for disclosure, apology (when appropriate) and upfront compensation (when necessary) after adverse medical events” has been successfully implementing laws in 34 states which allow doctors and/or facilities and their representatives to make apologies for medical errors. Those same laws make those apology statements inadmissible in court in order to encourage settlements. Admitting a mistake to keep someone from suing you seems a little odd, but experience and research proves it actually works.
Providers disclosing medical errors to patients and, at the same or a later time, offering a sincere apology, and often compensation, results in decreased numbers of lawsuits. The New York Times reported that as little as thirty percent of medical errors are disclosed to the patients (or their survivors). It is often the concealment of the error and an accompanying unrepentant attitude that feeds the injured party’s anger and results in the filing of lawsuits.
The “apology” program proved successful at the University of Michigan Health System – lawsuits were reduced 68% over the period tracked and at the University of Illinois – lawsuits were reduced almost 50%. Both facilities also experienced drops in legal-related expenses (including settlements). The National Quality Forum in 2009 published an updated practice statement of safe practices that included standards for disclosure of unanticipated outcomes. In a terrific review article, the New England Journal of Medicine has discussed the effectiveness of such disclosures and even the Joint Commission, as far back as 2001 (when they were still JCAHO) adopted the first standards for disclosure. Since then, similar standards and guidelines have been adopted by organizations and facilities across the country. (Here’s a bibliography of articles on disclosure from the Joint Commission.)
So why aren’t more facilities allowing doctors to apologize in order to deter litigation? Part of it is reticence. Would it surprise you to know that according to the Journal of the American Medical Association doctors are either unwilling or afraid to apologize? Insurance companies and facilities still prefer to “deny and defend.” Also defense law firms, whose livelihoods depend on continued and protracted litigation, have no incentive to quickly settle a potential lawsuit.
As a legal nurse consultant working with a case involving an injured plaintiff you will want to discover whether a defendant facility had a disclosure policy in place and whether or not that policy was followed. As a defense CLNC® consultant you may wish to do the same. It may also be time to involve your facility in this type of program as a cost-savings measure.
Here’s an interesting thought, if these types of programs work so well in medical-related cases, what other types of cases might be able to use an apology system? Perhaps you might see this in toxic torts (chemical spills) or products liability (medical-device) cases? How about simple personal injury cases? The possibilities are endless.
Success Is Inside!
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