COMMENTARY

Saying 'I'm Sorry' Isn't Enough; Will Hearsay Protect You?; More

Wayne J. Guglielmo, MA

Disclosures

January 10, 2013

In This Article

Saying "I'm Sorry" Isn't Enough; Money Is Still the Key

Lots of media attention has been directed in recent years to medical apology programs. These programs call upon physicians to disclose adverse events to affected patients, issue an apology, and, where appropriate, offer compensation.

Evidence suggests that early adopters of this approach have reduced their liability costs. But until recently, researchers were unclear about whether that reduction was the result of effective disclosure and apology practices or compensation offers. Now a team of researchers has shed light on this question and published its findings in the December issue of Health Affairs.[1]

Using survey vignettes to simulate actual disclosure and resolution situations, the researchers compared the effects of different compensation offers with those of explanation and apology alone.

Not surprisingly, two thirds of the individuals surveyed desired more than just a simple explanation and apology. They wanted compensation for their hypothetical injuries.

Despite this, researchers found that "increasing the offer amount did not improve key outcomes." Specifically, individuals who received "full-compensation offers" were no less likely to contact a lawyer than were people receiving lower offers. In fact, a full-compensation offer actually "increased the likelihood that people perceived the disclosure and apology as motivated by providers' desire to avoid litigation." In short, although most survey respondents demanded compensation in addition to an apology, increasing the amount of that compensation neither discouraged them from seeking legal advice nor made them less suspicious; if anything, it made them more so.

Researchers believe that these results should be carefully weighed by hospitals, physicians, and malpractice insurers implementing or participating in similar programs. As the researchers say, "they may benefit from separating disclosure conversations and compensations and from excluding physicians from compensation discussions."

Because more generous compensation offers sometime cause injured patients to doubt the sincerity of a doctor's initial disclosure and apology, institutions and practices that establish "disclosure and resolution" should do their best to keep the parts of the program separate. In other words, doctors should be tasked with offering the initial disclosure and apology but excluded from any subsequent discussions of compensation. Administrators and their lawyers, on the other hand, should be tasked with discussing compensation, both internally among themselves and with the injured patient.

Will Hearsay Hold Up as a Med-Mal Defense?

Anyone who's been a party to a lawsuit -- or regularly watches one of the countless court TV shows -- is familiar with the hearsay rule. Simply put, it prohibits information gathered by one person from another person to be used as legal evidence in a judicial proceeding.

Every state has exceptions to the hearsay rule, though. One of them pertains to statements made for the purpose of medical diagnosis or treatment. For doctors who find themselves embroiled in a lawsuit, this exception can be vital to their defense, permitting them to put statements into the record that would otherwise be excluded.

But are hearsay statements in medical malpractice suits always admissible? This is a question that the Colorado Supreme Court will soon take up in a case that could have significant national implications, according to a posting on amednews.com.[2]

The case involves a Colorado man, Vasilios Haralampopoulos, who in 2004 visited the emergency department of the Medical Center of Aurora complaining of abdominal pain. The internist on call, Mauricio L. Waintrub, MD, took a medical history and ordered scans, which revealed a cyst on Haralampopoulos' liver. Unable to determine its cause, Dr. Waintrub nevertheless admitted his patient for a needle biopsy, which was performed the following day by radiologist Jason L. Kelly, MD. Shortly after Dr. Kelly pierced the cyst, however, Haralampopoulos went into cardiac arrest. After preliminary resuscitation efforts proved unsuccessful, the patient was eventually revived, but his loss of oxygen led to a severe brain injury, putting him in a permanent vegetative state.

Ten days later, the patient's former girlfriend approached Dr. Kelly and asked whether he thought Haralampopoulos' past cocaine use to control his abdominal pain may have affected the outcome of the needle biopsy.

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