A DAY WITH THE JUDGES

A Symposium Covering Medical, Legal, and Ethical Issues

at

Integris Baptist Medical CenterJames L. Henry AuditoriumOklahoma City, Oklahoma

October 15, 2010

Ethics: Disclosure of Medical Errors and Apology to Patients

Presented byCarl T. Hook, M.D., F.A.C.S.

President and CEO Of

Physicians Liability Insurance CompanyOklahoma City , Oklahoma

Medical Errors and Unexpected, Adverse Outcomes. Can These be Eliminated?

Proper, Ethical Process for Addressing these Errors and OutcomesEmpathic “I’m Sorry”

HonestEmpathic “I’m Sorry”

TransparentEmpathic “I’m Sorry”

InvestigativeEmpathic “I’m Sorry”

ResponsibleApologetic

Empathic “ I’m Sorry”

Merriam Webster Dictionary defines “Sorry” as the feeling of regret, sympathy, pity.

Reasons for filing a lawsuit claiming medical negligence

“The majority of people who file medical lawsuits file out of anger, not greed. That anger is driven by lack of communication, being abandoned by doctors, and no one taking responsibility for his mistakes. Apologizing and offering some up-front compensation for injuries caused by error reduces this anger. Also, if doctors learn from their mistakes, they have a better chance of fixing them and not repeating them.”

Quote from Doug WojcieszakFounder and Spokesman of the

Sorry Works! Coalition

Factors That Influence a Plaintiff Attorney to Accept a Case of Alleged Medical Malpractice

“ When deciding on whether to take on a plaintiff’s medical malpractice case, we look for the right theme and a value. The theme is what we will show the jury, and we want to be able to demonstrate for the jury that by making our suggested award, it will be doing the right thing. Issues like failures of a healthcare provider to disclose a medical error, to accept responsibility , to communicate simply and truthfully, and to show empathy are examples of important themes. They are also factors which add value to a claim. Jurors relate with the patients and they get angry when doctors fail to admit mistakes. Patients have an inherent right to know about their treatment and when something goes wrong. Keeping information from the patient and his family only makes my case more valuable.”

Quote of Philip H. Corboy, Jr.Medical Malpractice Plaintiff Attorney

Disclosure Laws To date, 8 states have gone a step further and enacted mandatory disclosure statements. These are CA, FL, NV, NJ,

OR, PA, VT, and WA.

Oklahoma has no Disclosure Law.

Apology/ Sympathy Laws

In 1986, Massachusetts was the first state to enact such a law. Between 1998-2007, 33 more states enacted some form

of Apology/Sympathy Laws. 2005 was the most active year, with 13 states enacting

laws with immunity provisions.

Do You Need a Law to Apologize?ABSOLUTELY NOT!

The code of Medical Ethics requires disclosure from an ethical viewpoint, and further states that concern regarding legal liability which might result following truthful disclosure should not affect the physician’s honesty with a patient.

Plaintiff Attorney’s Viewpoint

“I would never introduce a doctor’s apology in court. It is my job to make a doctor look bad in front of a jury, and telling the jury the doctor apologized and tried to do the right thing kills my case.”

Quote of the President of South Carolina Trial Lawyers Association during testimony before the South Carolina

Senate, September 2005

This plaintiff’s attorney’s quote is in stark contrast to the information delivered errantly to healthcare professionals for

years that you should not apologize lest it be used against you in court. That is not so, as long as the apology and

disclosure are delivered properly, and a full understanding of the big difference between a sincere showing of empathy, “ I’m Sorry”, and an apology accepting responsibility. Both

done in the correct manner, and under the right circumstances have powerful POSITIVE legal consequences. It

is very important for your clinic, hospital, or medical professional liability insurance carrier to have implemented a

disclosure program to teach and assist you in this process correctly and effectively.

Reasons to Engage and Utilize the Disclosure and Apology Program

Business and Economics

Psychological

Ethical

Business and Economics

Program initially utilized at VA Hospital, Lexington, KY, 1987Subsequent adoption by: University of Michigan Health System

University of Illinois Medical Center Catholic Healthcare West COPIC of Colorado

Stanford University Teaching Hospitals Harvard Teaching Hospitals

Kaiser Permanente Hospitals Children’s Hospitals & Clinics of MN Johns Hopkins Hospital Multiple Medical Clinics & R.R.G.’s 2008 – PLICO 2010 – CAP-MPT of CA

University of Michigan Health System Adopted their disclosure program in 2001

Total Claims Case Reserves Legal Expenses Case Life Avg.

2001 262 Cases $72 Million $48K/Case 20.3 Months2006 <100 Cases <$20 Million $21K/Case 9.5 Months

The Program has changed the medical-legal culture in MI.

Medical Staff Satisfaction – 98%

Significant Retention Factor – 55%

University of Michigan’s program is based on three simple principles:

1) Apologize and compensate quickly and fairly when medical care causes injury;

2) Defend medically appropriate care vigorously;

3) Learn from mistakes so they are not repeated, further reducing liability exposure.

National Statistics for Medical Professional Liability Claims

65-82% of filed claims are closed without payment

30-13% of claims are settled before trial 5% of claims are litigated, and 87-90% result in defense verdicts

Our Oklahoma statistics are 70%, 25%, 5%, and 92%

Psychological ReasonsThe avoidance of feelings of guilt and remorse for withholding

information of error or medical status.

The open mind and heart of being honest, transparent, candid.

The maintenance of communication with patient and family, which helps maintain doctor – patient relationship with the entire family, and their close friends (This can also be a business and economic reason).

The ability to have “closure” after an adverse outcome rather than fear, guilt, depression, substance abuse, domestic and/or practice divorces, or suicide.

Ethical Reasons

The tenants of the Hippocratic Code and the Medical Code of Ethics

It is the RIGHT thing to do for your PATIENTS and YOURSELVES.

Thank You.