February 24, 2005

RESPONSIBILITY WORKS?:

Maybe docs can just say 'I'm sorry' (JIM RITTER, February 24, 2005, Chicago Sun-Times)

State legislators are considering a surprisingly simple solution to the medical malpractice mess.

When doctors and hospitals screw up, they should just say "I'm sorry" and offer prompt compensation.

Patients treated this way, the theory goes, are less likely to sue for malpractice, and this in turn could help rein in skyrocketing malpractice insurance costs. [...]

Several hospitals in other states have begun apologizing for mistakes and offering compensation. One of the first is the Veterans Affairs Medical Center in Lexington, Ky. The VA's candid policy has resulted in more malpractice claims but lower payments, according to a 1999 study in the Annals of Internal Medicine. An editorial in the journal said the VA policy "seems to be the rare solution that is both ethically correct and cost-effective."

University of Michigan Health System began a similar policy in 2002. The average number of legal actions pending against the system has dropped to about 130, from 275. The system also is saving about $1.5 million per year in legal bills.

"Patients are far more forgiving than we give them credit for," said Rick Boothman, the system's chief risk officer.

Posted by Orrin Judd at February 24, 2005 8:34 AM
Comments

Wouldn't it just be a 'declaration against interest' and the doctor would be hanging himself?

Litigation isn't about fairness or decency, it is about trying to win the lottery. Doctors look like the Great White Whale to most people, whether patients or jurors, so they will always be a favored target.

Posted by: Bart at February 24, 2005 11:09 AM

The question is whether the money they lose from the number of extra cases they lose by declaring against interest exceeds that of the money they save by not getting sued as much.

Posted by: John Thacker at February 24, 2005 11:21 AM

If you 'say you're sorry' the sharks will smell blood. Also, what may work for a government entity, which can legitimately say it is using the taxpayers' money to settle claims, may not work for a doctor who will look like a giant pinata full of money should he go before a jury if he admits wrongdoing beforehand. People resent the money doctors make or are perceived to make. The notion that people who put in years and years of hard work and study should be rewarded for same is completely alien to the Gadarene swine that make up much of our society.

In our 'adversarial' system, being adversarial is the wisest course. Now, if we went to an arbitration system, where people who actually know what professional standards are and what the real financial impact of malpractice is, a different, more collegial approach is in order.

Posted by: Bart at February 24, 2005 12:40 PM

The Uniform Rules of Evidence, close variants of which are in use in all federal and most state trial courts, sort of try to favor this sort of thing, although the rules could go farther. Right now, a court cannot consider evidence that a party took remedial measures (e.g., new hospital policy that should have prevented the accident), that a party offered to settle or compromise a claim, or that a party offered to or did pay medical expenses as evidence that the party taking these actions is liable for the injury. I don't really see why an apology coupled with an offer to pay medical expenses to fix the problem should be treated differently, but it is.

Posted by: Random Lawyer at February 24, 2005 1:23 PM

Bart -- You are way out of line here. The people who sue for malpractice are usually severely damaged people. What's that damage worth? It's a dicey question, and I tend to come down on the side of serious malpractice reform.

But did you read the article? Facts -- real, actual, recorded truths -- indicate that better bedside manner and apologies when bad results occur HAVE SAVED hospitals and doctors money. Isn't the point of reform to save money?

By the way, arbitration is often required by states, but it's not binding. As far as binding arbitration overseen by competent professionals, I think we do have a system for that. It's called the courts.

Posted by: Seven Machos at February 25, 2005 12:54 AM

Seven:

Unfortunately, no they aren't. It's quite common for parents to sue of their baby has any defect whatsoever, which is why OB/GYN malpractice rates are so high.

You're right about Bart not reading the story though.

Posted by: oj at February 25, 2005 1:24 AM

Read the story. I also have a professional BS detector which causes me to discount numbers that are not statistically significant or where other variables come into play that can skew the result. Both are true here.

Seven,

People who sue for malpractice may be severely injured(oftimes they are faking it or hamming it up worse than William Shatner) but their mouthpieces are merely scam artists and con men, able to bamboozle juries made up of 6-12 people too stupid and irrelevant to the society to be able to avoid jury duty. Thus, we get results that have no basis in reality. Just take a look at the ATLA jury verdict newsletter from time to time. And just what in the Hell do you think the tort reform movement is all about?

Non-binding arbitration is a waste of time, not unlike exhibition season football. And the notion that scam artist plaintiff's attorneys, nitwit juries and crooked hack politician judges are 'competent professionals' is delusional. What hallucinogens are you using?

Posted by: Bart at February 25, 2005 6:47 AM

Seven:

By BS detector he means that he ignores anything that conflicts with his preconceived notions.

Posted by: oj at February 25, 2005 9:44 AM

OJ,

The defendants discussed were either a Federal agency, which has to be sued in Federal Court, and the U of Michigan, a State entity whose attorneys can certainly claim to a jury that they as taxpayers will be paying for the settlement and has deep enough pockets to fight any litigation to the coming of the Moschiach. Neither is apposite to whether abject apology is a wise policy for independent contractor physicians or physicians from proprietary hospitals. It's apples and oranges.

One would think you would have learned something from 8 years of Bill Clinton or from the behavior of the various Catholic dioceses across the country. Never apologize, never admit wrongdoing, stonewall, stonewall, stonewall, prevaricate, delay and you'll be just fine.

Posted by: Bart at February 25, 2005 5:17 PM

Bart:

Yes, that it doesn't work. Clinton was disbarered, impeached, and lost the suit. The Church has paid out millions.

Posted by: oj at February 25, 2005 5:26 PM

"Never apologize, never admit wrongdoing, stonewall, stonewall, stonewall, prevaricate, delay and you'll be just fine."

This works so great for hospitals and doctors, Bart. That's why plaintiffs' attorneys have to take the bus to court and beg outside for change between trials. Come on, Dude, you aren't making any sense.

Posted by: Seven Machos at February 26, 2005 1:54 AM

It is almost always better to pay off tomorrow than today. If the Catholic Dioceses apologized and paid off the thousands of claims against them rather than filing for bankruptcy and screwing the plaintiffs over, there would effectively be no Catholic Church in America. It would have been auctioned off down to the incense and the copies of Boys' Life magazine with the pages stuck together that one can find in the rectories.

The current system stinks, but this proposal simply provides an even larger windfall for the plaintiffs and their mouthpieces. In the world I live in, an admission of failure or wrongdoing is an open invitation to being picked clean by the piranhas that are our fellow human beings. As an old law school dean friend of mine used to tell his 8AM Property class,'If you want justice, go to divinity school.' Mandatory arbitration would make the claims more rational more reflective of actual damage than of the class-based resentments of the underclass that serve on juries, the attorneys' compensation a smaller percentage of those claims, and would get the money to the deserving that much faster. A win-win for everyone.

Posted by: Bart at February 26, 2005 11:02 AM
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