Can apology, honesty stem the med-mal tide?

Coalition says open communication can stop anger-based litigation

Are "I’m sorry" really the magic words? According to a coalition of doctors, hospitals, attorneys, and patients, a lesson most of us learned as toddlers could be the key to stemming the flood of medical malpractice lawsuits in the United States.

"Medical malpractice lawsuits are not driven by greed; they’re usually about anger," says Doug Wojcieszak, an Illinois resident and public relations executive who founded a coalition called Sorry Works!

Wojcieszak knows a little bit about the power of apology and communication. His brother died as the result of a medical mistake, and though his family tried to find out what happened, they finally had to sue to get the answers they sought. Their suit — like as many as 60% of all medical malpractice suits, Wojcieszak says — was not about money. It was about getting satisfactory answers and assurances that corrections would be made so the mistake wouldn’t happen again to someone else.

"Medical malpractice lawsuits are not about money," he says. "They’re usually about anger and feeling abandoned after a bad outcome."

That feeling of abandonment is inflicted by a legal and medical system that closes ranks when a medical error is alleged or suspected, Wojcieszak notes. "Family members are asking questions, and doctors and hospitals are being told to not say anything, not to admit anything. "It leaves the family members feeling shut out and angry."

How Sorry Works!’ works

The ideas behind Sorry Works! are communication and compensation. In the case of an adverse incident:

  • Hospitals and physicians review the incident thoroughly.

They determine exactly what happened and whether there was medical error committed — no matter what the investigation reveals.

  • The hospital contacts the family/patient and schedules a meeting.

Wojcieszak says the hospital encourages the family to hire an attorney, and then hospital representatives, the physician, family, and legal counsel sit down and go over the event in full.

  • If a mistake was made, "I’m sorry" is the first step.

If medical error contributed to the bad outcome, the hospital and physician apologize to the family or patient, and a fair settlement is offered. Importantly, Wojcieszak says, the family is told how the hospital and physician plan to ensure that the mistake won’t happen again.

  • If no mistake was made, sympathy and full disclosure are offered.

If the death or bad outcome is found to be simply the unavoidable, unfortunate result of disease, treatment, or injury, the hospital and physician explain what happened. The patient’s file is opened up to the family/patient, and the episode is explained step-by-step, with questions from the family or patient answered.

Wojcieszak says in the best scenarios, families’ questions are answered, they are fairly compensated (if deemed appropriate), and lawsuits that would have been filed simply out of anger are avoided.

Not a guaranteed solution

The Sorry Works! model is not a solution to every case. Sometimes, families are not satisfied by the hospital’s explanation or settlement offer. Sometimes, they believe litigation is their best option.

In those cases, the Sorry Works! meeting does not work against either side, Wojcieszak explains. In fact, even if the doctor or hospital have admitted a mistake and apologized, it need not always work against them.

"Some states and some hospitals want to say that the apologies can’t be used against the doctors if the case goes to court," he says.

In fact, some states have passed so-called "I’m-sorry" legislation that protects physicians from their own apologies being used against them should a medical malpractice suit arise.

"But why would you do this — sit down, explain everything honestly, and offer a sincere apology— and not want it known? You’ve taken the high road. You’ve been honest. Instead of wearing the black hat, you get to wear the white hat," Wojcieszak says.

He adds that full disclosure to families could be a necessary step toward closure, whether there is error or not.

"Sometimes people just die. Medicine can only do so much, but one thing it does need to do is communicate with families," Wojcieszak says. "And doctors, especially when they are innocent, need to say, I did all I could.’"

The Veterans Affairs (VA) Medical Center, Lexington, KY, practiced the "extreme honesty approach" for more than 17 years, and reports it has reduced lawsuits, settlement costs, and defense costs. Only three cases have gone to trial in the time the medical center has been practicing the approach on which Sorry Works! was modeled, and the average settlement is $16,000 vs. the national VA average of $98,000.

Hospitals that use the Sorry Works! approach find their defense costs are greatly decreased, because cases that could drag on for years are resolved in a matter of months. Details of the success of the program at the VA hospital were detailed in a 1999 Annals of Internal Medicine report.1

The Joint Council on Accreditation of Healthcare Organizations (JCAHO) used the VA Lexington program to develop a protocol by which all hospitals — private and public — should follow to be accredited. JCAHO awarded its 2002 John M. Eisenberg Patient Safety Award for advocacy to the VA center for its voluntary disclosure policy.

Better than caps on damages

Proponents of the extreme honesty approach say communicating with patients on the front end and avoiding potential lawsuits makes more sense than capping damages, a frequently mentioned solution to the rise in medical malpractice cases.

"We hear politicians and doctors screaming, Frivolous lawsuit!’" Wojcieszak says. "We make no bones about the fact that 60% to 80% of cases are dropped. Some people say that’s because they were frivolous to begin with, but others say they only filed the suits because they were angry and had to go through the courts to get the answers they wanted."

One thing Sorry Works! does not do is discourage patients and families from filing lawsuits.

"We don’t encourage families to give up their rights to sue, because that keeps the medical community honest," says Wojcieszak. "Some hospitals might construct their program to say that families waive their right to sue if they sit down and get full disclosure, but that defeats the intent."

The honesty model works better than state-imposed caps on jury awards, he says, because it works faster and does not involve constitutional changes.

For example, he notes, in the first year of implementing Sorry Works!, the University of Michigan hospital system reduced lawsuits by 50% and annual defense litigation expenses from $3 million to $1 million.

In comments to physicians on its web site, Sorry Works! claims the honesty and apology model provides more certainty over liability exposure without waiting for legislation or court rulings on the constitutionality of damage caps and insurance reform.

Persuading the medical and insurance communities is a hefty undertaking, Wojcieszak says.

"That’s the reason for the coalition," he points out. "This is a culture change, and we’re committed to a long-term education campaign because we realize Sorry Works! runs contrary to conventional wisdom.

"So often people — especially doctors — are told to keep quiet and not communicate with individuals who may initiate a lawsuit against them."

Model used in business world, too

The outdoor equipment manufacturer Toro Inc., is a pioneer in resolving cases — ones usually involving an injury suffered while using a Toro product — before litigation ensues. Toro uses paralegals, experienced settlement counsel, and mediators familiar with Toro’s preference for early case resolution to work with potential adversaries, and apologizing for injury or damage is a major part of the system. The program has been in place since 1991, and Toro says it will have saved $100 million in litigation costs by middle of this year.

Johnson & Johnson Co. followed suit, incorporating many of Toro’s methods into its own settlement approach.

To help introduce the ideas behind Sorry Works! in a way that will seem less scary to hospitals, proponents in Illinois are proposing legislation that would create a pilot program to guarantee hospitals reimbursement should their liability costs go beyond what they averaged before the hospitals adopted the extreme honesty model.

The bill allows doctors or other medical staff to express sympathy for a bad outcome within 72 hours, without having the expression used against them.

"If their liability costs go up, the state would pay the excess [difference between the historical average and the higher costs], so they have a sort of insurance policy for the hospitals, and it’s a way for the state to say, This is a real solution that we believe will help the medical malpractice problem,’" says Wojcieszak.

Some in the medical community are wary, however.

"Doctors are by nature compassionate people, but the litigious environment in which we work often forces us to speak with our heads over our hearts," says Kenneth J. Printen, MD, president of the Illinois State Medical Society, in comments to members about Sorry Works! legislation. "Sadly, it is possible for an expression of grief or sympathy to be twisted into an admission of guilt and used against us by opportunistic lawyers with visions of dollar signs dancing in their heads."

He says doctors should be allowed to say, "I’m sorry," but won’t feel comfortable doing that until they are assured that they will be protected from that act being used as fuel for the medical malpractice fire, rather than a solution.

According to American Medical Association (AMA) past president Donald J. Palmisano, MD, the AMA encourages physicians be honest with patients when mistakes are made and to explain what corrective actions will be taken.

Reference

1. Kraman SS, Hamm G. Risk management: Extreme honesty may be the best policy. Ann Intern Med 1999; 131:963-967.

Sources

  • Kenneth J. Printen, MD, President, Illinois State Medical Society. Address: 20 N. Michigan Ave., Ste. 700, Chicago, IL 60602. Phone: (312) 782-1654.
  • Doug Wojcieszak, Founder, The Sorry Works! Coalition, P.O. Box 531, Glen Carbon, IL 62034, Phone: (618) 559-8168. Email: doug@sorryworks.net.