Liability Means Never Saying You're Sorry. An Interview With Nancy Berlinger, PhD, of the Hastings Center

Robert L. Lowes

Disclosures

October 06, 2009

Introduction

In the current healthcare-reform debate, organized medicine has lobbied lawmakers to fix the medical liability system -- specifically, by capping noneconomic damages in malpractice jury awards. President Obama and Senate Finance Committee Chairman Max Baucus have responded with proposals for malpractice reform that omit "caps" and stress patient safety over a physician's legal safety. Instead of erecting defenses against plaintiffs and their attorneys, their proposals could encourage physicians to apologize for clinical mistakes and offer fair compensation, all outside of the courts.

It's not what organized medicine ordered, but such an approach would benefit patients and physicians more than limiting jury awards would, said Nancy Berlinger, PhD, an ethicist with the Hastings Center, a bioethics research institute in Garrison, New York. "Making this discussion narrowly about tort reform doesn't serve the goal of patient safety," said Berlinger, author of After Harm: Medical Error and the Ethics of Forgiveness (Johns Hopkins University Press; 2007). She cited a study published in the journal Health Affairs in 2005 that reported that only 4% of payments to injured patients are jury awards -- the rest are settlements.

"If the overwhelming numbers of cases are settled, why not give physicians incentives to settle early and patients incentives not to file in court?" said Berlinger. In the process, she said, physicians would be spared the agony and expense of a long court case. Physicians, she added, also miss the point when they view malpractice plaintiffs simply as money-hungry legal adversaries instead of injured parties. She recalls a medical school professor who corrected a resident when he complained about angry patients who sue. "They have a right to be angry," Berlinger quoted the professor as saying. "They came to us for help and they got hurt."

Baucus and Obama Have Track Records on This Subject

Earlier this month, Sen. Baucus released a summary of his Senate committee's plan for healthcare reform. One paragraph of the document stated that Congress should encourage states to conduct demonstration projects testing alternatives to the current medical liability system. It was vague language, but in 2005, Baucus and fellow Finance Committee member Sen. Mike Enzi introduced a bill called the Fair and Reliable Medical Justice Act that spelled out 3 ideas for study:

  • Special health courts presided over by expert judges;

  • A no-fault system, similar to workers' compensation plans, for compensating patients who suffer avoidable medical injuries; and

  • Programs that encourage physicians to reveal medical errors early on to patients and make good on any damages, with neither action constituting a legal admission of liability.

To win more support for healthcare reform, President Obama has authorized the Department of Health and Human Services to test methods to reduce preventable medical injuries and reduce litigation, perhaps through "early disclosure protocols." And like Baucus, Obama has a track record on this subject. In 2005, he and then-Sen. Hillary Clinton introduced the Medical Error Disclosure and Compensation Act, which is based on a "Sorry Works" program. According to the Sorry Works Coalition, the program has helped the University of Illinois Medical Center in Chicago settle medical-injury cases out of court.

Healing Words Aren't Always Enough

The words "I'm sorry" can mean 2 different things, depending on the medical context, but either way, they're important for patients to hear, noted Berlinger. "'I'm sorry that your father died'" communicates sympathy, even though it doesn't necessarily acknowledge any mistake on your part. 'I'm sorry that I killed your father' does." Many physicians are reluctant to utter either the "I'm sorry" of sympathy or of responsibility for fear their words will be used against them by a plaintiff's lawyer, said Berlinger. Yet injured patients easily become angry when their physicians are mum, and that anger can trigger a law suit.

With these dynamics in mind, 36 states had passed "I'm sorry" laws as of late 2008 that make such statements by physicians inadmissible in litigation.[1] In 28 of those states, the protection covers only admissions of sympathy or benevolence. In the remaining 8 states, the law also applies to admissions of fault. None of these laws, however, couple compensation with healing words, and that's a serious omission when a healthcare provider is at fault, said Berlinger. "The word 'sorry' doesn't pay the rent when a breadwinner dies, or a family exhausts its savings." She likes to quote South African cleric Desmond Tutu on the subject: "If you take my pen and say you are sorry, but don't give me the pen back, nothing has happened."

Compensation Is a System Obligation

A number of medical organizations have discovered that offers of apologies and compensation have reduced their outlays for malpractice. In her book After Harm, Berlinger highlights 3 success stories. One is the Lexington (Kentucky) Veterans Affairs Medical Center, which provided the template for the national Sorry Works Coalition. Hammered by large malpractice verdicts for roughly 20 years, hospital administrators tried a different approach after they learned that a medication error had led to the death of a patient. They volunteered the information to family members who weren't aware that care had gone amiss and helped them secure a financial settlement. In what is called the Lexington Model, the hospital now routinely reveals medical mistakes to patients, apologizes, explains how it will try to avoid the error in the future, and offers compensation when appropriate. As of 2000, the hospital averaged $15,000 per settlement, compared to an average of $98,000 for all VA hospitals, according to Berlinger.

Catholic Healthcare West, a system of 41 hospitals and medical centers in California, Nevada, and Arizona, is also taking this approach. "Patients are far more likely to seek legal representation if they believe that information has been concealed from them," states the organization's Philosophy of Mistake Management. "Hence, timely disclosure of mistakes is cost effective."

COPIC Insurance, a Denver-based medical liability insurer, has also gotten into the act with a program called the 3Rs -- Recognize, Respond, and Resolve -- for unexpected medical outcomes. Patients can receive up to $25,000 for additional medical care and up to $5000 to compensate for "loss of time" while still retaining the right to file suit later on.

In all 3 programs, noted Berlinger, while physicians may offer a personal apology, the organization takes responsibility for making restitution. "It can't be up to the physician," said Berlinger. "It's a system obligation."

The Court System Still Has a Role

Berlinger said the medical-liability proposals of President Obama and Sen. Baucus strike the right note on promoting patient safety, especially when it comes to early disclosure of clinical errors. The medical ethicist is less enamored, however, of the notion of specialized health courts that would adjudicate malpractice claims. "Health courts assume we need to fix the litigation system, but medical errors happen in healthcare settings," she said. "So I want solutions that can be executed inside healthcare settings."

Berlinger sees more promise in experiments to compensate injured patients on a no-fault basis, an approach used by New Zealand and Sweden. Proponents of no-fault adjudication argue that it would help more victims of malpractice than the current tort system. According to the landmark Harvard Medical Practice Study, only 1.53% of victims of medical negligence ever file a claim. While many nonfilers don't know that they've been harmed by mistakes, others have claims that are too small to attract a plaintiff's attorney. In a no-fault system, such claims could get the attention they merit. Patients would be compensated faster, and physicians wouldn't be dragged through years of legal proceedings or stigmatized by a jury verdict.

However, instituting no-fault is more likely on a state-by-state basis than a national one, noted Berlinger. "Countries with no-fault adjudication tend to be small, and have national healthcare systems. Grafting this model onto the entire United States may not be possible. We're not New Zealand."

At the same time, Berlinger wants to preserve the current tort system, especially for high-dollar claims involving death, permanent disability, or a healthcare provider who is flagrantly negligent, perhaps because his mind is addled by drug abuse.

"The courts are part of how our country works," she said.

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