A Better Bedside Manner

By Jeff Ockerman, J.D.

Studies are now being reported that show some hospitals are encouraging their doctors to apologize for medical errors. Rather than being an invitation for litigation, these studies show that apologies reduce the number of lawsuits and liability costs.

The Sorry Works! Coalition has been formed to encourage this movement among hospitals and doctors. Doug Wojcieszak, a spokesman for the Coalition, reports that Harvard Medical School's major teaching hospitals are now encouraging their doctors to apologize for medical errors. The first hospital to implement apologies for errors, he says, was the Lexington, Ky., Veterans Administration Hospital, which instituted a policy of apologizing for all medical errors and offering fair, upfront compensation to patients, families, and their attorneys. This hospital reported in the December 1999 edition of Annals of Internal Medicine that their facility ranked in the lowest quartile of VA facilities for malpractice payouts; their average settlement per case was $16,000 compared with the national VA average of $98,000.

The approach has spread to other VA hospitals and hospital systems. The Coaltion reports that the University of Michigan's hospital system has cut its lawsuits in half and estimates saving $2 million in defense litigation expenses annually because cases are being settled in months instead of dragging out for years. Similar positive results have been reported at 28 Kaiser hospitals and 39 hospitals in the Catholic Healthcare West System.

These apology programs, which some call “honesty” programs, vary from hospital to hospital, but usually follow a similar protocol. After a bad outcome, a review committee determines whether the standard of care was met. If the standard of care was not met, a meeting is scheduled with the patient and family and their legal counsel, where the doctors apologize, provide explanations, and, importantly, offer fair, upfront compensation for the injuries.

On the other hand, if the investigation shows that the standard of care was in fact met, the doctors still meet with the patient and family and their legal counsel. They explain what happened, open medical charts, and answer all questions. This approach, the Coalition says, reduces the number of nonmeritorious cases that account for 60 to 80 percent of all medical malpractice lawsuits.

As a lawyer, I know this approach is the reverse of traditional litigation strategy. But by not involving insurance companies and their legal counsel on the front end, it seems that doctors and hospitals may greatly benefit from it. Lawyers are still involved, but typically they are hospital and physician attorneys who prepare the compensation/release forms necessary to legally implement the agreements. And in the case of a denial by the hospital and physicians of compensation, evidence of the case has already been presented to the family and patient and their counsel and can be defended in court. Discovery costs are reduced by presenting the information on the front end. The Coalition states that hospitals and physicians save money either way.

And most importantly, the patients benefit from honesty programs. The Coalition states that they are provided a quick and fair alternative to litigation and reports that honesty programs help doctors improve medical care because they can learn from their mistakes.

" Jefferson H. Ockerman, J.D., counsel with Stites & Harbison PLLC, Nashville, TN, advises clients on a variety of health care law matters. He regularly provides counsel on issues including fraud and abuse, physician self-referrals, the confidentiality of health information, licensures and certificates of need, PPO and PHO formation and managed care law."

For more information, or to schedule an interview with one of the co-founders of MedicalGPS, LLC Contact Jerry Stone, (615) 467-6338 Office, (615) 364-4415 Cell, or E-mail jerry@medicalgps.com.