Doctors are encouraged to admit errors rather than stone-walling

  For years, potential malpractice defendants have heeded their insurers' advice to emotionally divorce themselves from patient victims and to participate in a stonewall effort to deny or delay claims.  Some hospitals are seeing value in a different approach.

  Doctors at the University of Illinois and the University of Michigan have been encouraged to promptly admit mistakes to patients and their families and to participate in efforts to promptly compensate victims, rather than stonewalling them.  This represents a change in approach from the "norm" and from past practices.  Sometimes using the insured's "duty to cooperate" with the insurer's defense as a threat, othertimes, claiming that to admit errors will invite lawsuits, health care providers have been pushed to avoid discussing a mistake with the patient or family.  It has always been our impression that this approach actually contributed to the likelihood of a lawsuit and recent developments appear to confirm that it does.

    The current Risk Manager at the University of Michigan says that since it first began experimenting with full disclosure existing claims and lawsuits have dropped from 262 in August of 2001 to 83 in August of 2007.  The risk director was quoted in the New York Times to the effect that "Improving patient safety and patient communication is more likely to cure the malpractice crisis than defensiveness and denial." In fact, there is no "crisis" in Michigan at least (see prior web log entries documenting the drastic decrease in claims over the past 15 years), and there doesn't seem to be any question but what health care providers have contributed to the number of claims by adopting a "hardball" defense tactic from the outset.  In our experience, the great majority of claimants would rather address these issues outside of litigation, if it could be done fairly.

  The University of Illinois cites comparable data from its experience.  A drop in claims of fifty percent in two years, and only one patient filing suit of the 37 who were informed of a hospital error and received an apology.  Only six settlements have exceeded the hospital's actual medical and related expenses:  in other words, if victims are coopted early in the process, they actually settle for less than they would be entitled to receive.

  The Times quotes recent studies showing that about one in every one hundred hospital patients suffers some form of improper care, and that hospital negligence accounts for about 98,000 deaths in the U.S. each year.  Studies also show that only 30 percent of these occurrences are reported to the victim or his or her family.  Of these, only about 2 percent of all negligently injured patients actually press a claim.  The Risk Manager at U of M has seen a similar trend as trial lawyers in Michigan have discerned that the University will pay fairly and promptly for injuries it has caused, while vigorously defending claims that it considers unfair.  A well-known Detroit trial lawyer suggested that litigation is the "last option" with U of M, but still the "only option" for most other malpractice defendants in the state.

   Although the Joint Commission on Accredition of Hospitals (a voluntary association of hospitals that is pretty much toothless when it comes to enforcement) and the AMA both encourage disclosure, the only standards in this area are simply vague guidelines.    34 states now limit the admissibility of apologies or admissions of culpability in an effort to encourage doctors to acknowledge errors, and Democrats in Congress attempted to pass a similar bill in 2005, however, it was captured in a Senate Committee chaired by a Republican.

   The Times article pointed out that many injury victims are positively influenced by a prompt admission of error.  They are also strongly influenced by confirmation that changes have been instituted that will preclude a similar occurrence.  We have seen evidence of this same attitude among victims for years.  When asked by physician friends, we have encouraged a similar approach.  It is our impression that truth and humility are always a better policy--for patient and health care provider.