Blog Topic

Does Sorry Work?
Posted by: Spencer Pahlke
May 31, 2008

The "Sorry Works!" Coalition got some extensive coverage in the Times on Sunday. Ostensibly, their goal is to get doctors and other healthcare professionals to admit and apologize for medical mistakes earnestly and voluntarily. That part sounds good. The other component, though, is that these apologies have the effect of causing injured people to abandon their legal right to sue. I'm torn on the matter.

First, the Times article mentions some astonishing statistics not well-known to most people. Every year, 98,000 patients die as a result of medical errors in the United States; one in ever 100 patients suffers some form of negligent treatment; as few as 30 percent of medical errors are disclosed to patients. All of these numbers astonish and frighten me. They also show that we need some solution.

I am not opposed to more civility between defendant doctors and plaintiff patients. It's well-known that medical malpractice litigation is often antagonistic and even sometimes hostile. Deep emotions on either side of the case no doubt are a major cause of the problem-a malpractice lawsuit must feel like a personal attack on a doctor's practice and a medical error can result in grievous bodily injury or death. Neither side is in much of a position to compromise when such important personal issues are at stake. Consequently, efforts to push the parties toward an agreeable dialogue are welcome.

But a lawsuit is not about seeking money for the purpose of seeking money, and the amount of the settlement or verdict is not arbitrary. The medical malpractice plaintiff must be compensated for his injuries. No apology-no matter how sincere-will reduce the long-term care costs of a man rendered a paraplegic by failure to treat a spinal abscess, nor will it support a family whose breadwinning father died after radiologists did not tell him that a chest X-ray showed possible cancer. This is what worries me.

As the Times explained, at the University of Michigan, one of many institutions that have implemented this policy,

In the 37 cases where the hospital acknowledged a preventable error and apologized, only one patient has filed suit.

And, alarmingly,

Only six settlements have exceeded the hospital's medical and related costs.

That last one is code for: patients recover zero in non-economic damages. This is-somehow-even more harsh than MICRA, which limits the economic recovery to $250,000. This also totally overlooks lost wages or diminution of earning capacity.

So, while we want a more amiable relationship between sides in a medical malpractice case, we don't want to see patients forfeiting their rights to compensation they not only need, but also deserve.

Permalink