Monday, July 31, 2006

Apologies and Early Settlement Offers

Some hospital systems and insurers have adopted policies of apologizing when medical mistakes have been made and acting quickly to settle. Evidence is emerging that the approach works. For instance, the University of Michigan started the policy in 2002 and has seen the number of claims drop each year; meanwhile, its time for processing claims and its litigation costs have been cut in half. - Emerging Med-Mal Strategy: 'I'm Sorry', Nat'l L.J., July 24, 2006. (Details of the Michigan study are in the chief risk officer's testimony before the Senate Comm. on Health, Education, Labor, and Pensions.)

An advocacy group promoting this approach is The Sorry Works! Coalition, whose website offers various fact sheets, links to news stories, and other information.

Many states, including Washington, have legislation that allows health care providers to apologize without having their apologies be admissible as evidence in a civil suit.

On the federal level, Senators Hillary Clinton and Barack Obama have introduced S. 1784, the National Medical Error Disclosure and Compensation Act (National MEDiC Act). According to the Congressional Research Service summary, the bill

Requires the Director of the Office to establish and maintain a National Patient Safety Database to receive nonidentifiable patient safety work product.

Requires the Secretary, * * * to establish the National Medical Error Disclosure and Compensation (MEDiC) Program to provide for the confidential disclosure of medical errors and patient safety events, reduce preventable medical errors, ensure patient access to fair compensation for medical injury due to medical error, negligence, or malpractice, and reduce the cost of medical liability for health care providers.

Requires Program participants to: (1) spend savings from the Program on reducing medical liability premiums or on activities to reduce medical errors; (2) report to a patient safety officer any medical error or patient safety event or any legal action related to the medical liability of a health care provider; (3) report to the patient any medical error that resulted in harm; and (4) offer to negotiate compensation with the patient and offer to provide an apology.

* * *

Requires the Director to analyze: (1) patient safety data to determine performance and systems standards, tools, and best practices for health care providers; (2) the medical liability insurance market to determine legal costs related to medical liability, factors leading to such legal costs, and the success of any state reforms; and (3) patient safety data to examine cases that were not successfully negotiated through the Program.
The senators presented their position in the New England Journal of Medicine: Hillary Rodham Clinton & Barack Obama, Making Patient Safety the Centerpiece of Medical Liability Reform, 354 New Eng. J. Med. 2205 (May 25, 2006).

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