Monday, May 17, 2004

From The Wall Street Journal: Doctors' New Tool To Fight Lawsuits: Saying 'I'm Sorry'

When a medical mishap turned Linda Kenney's routine ankle surgery into a chilling brush with death, the family quickly paid a visit to a lawyer's office.

A jury, the family suspected, would likely show little mercy to the anesthesiologist, Frederick van Pelt, who inadvertently injected a painkilling drug in the wrong place, causing Ms. Kenney's heart to stop. To restart it, doctors at the Brigham and Women's Hospital sliced into her chest and cracked open her rib cage. Ms. Kenney's husband, Kevin, "wanted to kill the anesthesiologist, flatten him," says the 41-year-old mother of three.

But then, Dr. van Pelt broke with convention. Against the hospital's advice, he wrote Ms. Kenney a personal letter saying he was "deeply saddened" by her suffering. Later, over coffee at a suburban diner, he apologized for the terrible accident.

"I found out he was a real person," Ms. Kenney says. "He made an effort to seek me out and say he was sorry I suffered." Moved by the doctor's contrition, Ms. Kenney dropped her plans to sue.

Insurers and hospital lawyers have long discouraged doctors from apologizing to harmed patients for fear that such apologies might fuel lawsuits. The rule has always been "not to talk about the events to anybody," says Dr. van Pelt. "Even a passing comment can be subpoenaed."

But with malpractice premiums soaring and a national patients' rights movement pushing for full disclosure of medical errors, the industry is rethinking the traditional approach known as "defend and deny." Stories such as Ms. Kenney's are persuading a growing number of hospitals, doctors and insurers that apologies may end up saving some of the huge sums paid out to settle disputes over medical care.

With only a few states with laws protecting physician apologies from being admissible in court, such a declaration carries risks. Your results may vary, as they say.

On the other hand:

Yet some plaintiff lawyers say an apology can disarm a malpractice case. Boston attorney Andrew Meyer, who represents victims of medical malpractice, says his job is much more difficult when doctors fall on the sword. "The hardest case for me to bring is the case where the defense has admitted error," and apologized to the injured patient, he says. "If you have no conflict, you have no story, no debate. And it doesn't play well."

Probably because you won't have an arrogant SOB sitting in the witness stand during trial, denying that anything happened. A situation that these people love.

It is interesting to note that the cases mentioned in the article were those that a liability carrier would make a big push to settle rather than go to trial. Another thing that is clear is that an apology didn't let the physicians off the hook, there was still some compensation involved, just a great deal less than could have been awarded at trial.
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