An often overlooked tool in health care providers' struggle with the malpractice crisis is the medical apology. Two thirds of the states provide some form of protection for the medical apology (i.e., a simple apology is not admissible in court as an admission of culpability), and settlements reached post-apology are almost invariably lower that they would be otherwise. (In the current environment, articles on medical apologies are popping up everywhere … even in the NY Times business section.)
It is important to note that an effective apology policy does not stop with the simple apology — I'm sorry that this happened to you — but must include a commitment to conduct a root cause analysis, to communicate the results to the patient and/or patient's family, to implement systems improvements based on the results of the root cause analysis, and to offer a specific apology once the analysis is complete, and an offer of monetary compensation if the provider or its systems were at fault. Of course, it's easier to describe these steps than to actually carry them out. Providers who plan in advance, who adopt policies and procedures, and who are trained in the implementation of a medical apology policy, can see dramatic results. Smaller provider organizations may need outside resources to conduct root cause analyses; engaging these resources will frequently prove beneficial in the long run in terms of reduced settlement costs and avoidance of future issues.
Often, following a bad outcome, a patient's family member may wonder if he or she could have done something different to prevent the bad outcome, and the analysis can serve to put his or her mind at ease. In addition, patients and family members often sue because they want to be sure that "nothing like this ever happens to anyone else." If a provider can demonstrate that a root cause analysis has been done and systems improvements made so that the same mistakes cannot be repeated, then that impetus for filing suit is removed.
I was quoted in an article on medical apologies in a recent edition of American Medical News, suggesting that "preventive law" serves as a worthy complement to "preventive medicine." This piece serves as a good review of the issue and highlights some good resources, including successful medical apologies programs. For example, the University of Michigan health system reduced malpractice payouts by about 50% following implementation of its program. Other examples of successful programs abound. (And here's another resource on medical apologies.)
Many continue to work and hope for comprehensive malpractice reform. With health reform likely off the table for now — and malpractice reform not ever really a part of that legislative effort — the action needs to shift away from hoped-for legislative relief. In light of the potential for a new trend in elimination of damage caps — witness the recent Illinois case — providers need to think about alternative approaches to reducing that risk. Medical apologies programs — in addition to the psychic benefit they offer to both providers and patients — have proven to be effective in that regard in most states.
For provider organizations of all shapes and sizes, the HealthBlawger's multidisciplinary team offers a suite of education, planning, training and tracking services to aid in the development and implementation of a medical apologies program.
David Harlow
The Harlow Group LLC
Health Care Law and Consulting
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