"Love Means Never Having to Say I'm Sorry"
Apology Legislation Saves Money And Contributes Greatly To Healing, Reducing Malpractice Suits
by
Stuart H. Shapiro, M.D.
One of the first lessons that parents teach their children is to say "I'm sorry" when their actions cause hurt or an unintended consequence. I certainly teach my children to acknowledge their mistakes, not run from them.
Yet for decades, health care professionals have been advised by lawyers and insurers to "deny and defend" when an adverse situation arises, believing that an apology or expression of empathy to a patient, or a family member, would lead to a lawsuit, high settlement and a ruined career.
Pennsylvania lawmakers now have the opportunity to reject this defensive strategy and strengthen the relationships between health care professionals and their patients and their families by passing legislation that permits a medical professional to acknowledge, express empathy for, and take ownership of an unforeseen outcome without the risk of retaliatory litigation based solely on the statements made at the time of the apology.
This proposed legislation does not relieve the doctor, hospital or nursing home of liability and it does not prevent a patient or family from filing a lawsuit. It simply permits a health care professional to communicate openly and honestly with patients and their families without fear that their statements will be used against them in court.
Senate Bill 208, known as "apology" legislation, was introduced earlier this week by Sen. Pat Vance, R-Cumberland County, and co-sponsored by an additional 30 of her colleagues, Republicans and Democrats alike. It will cost taxpayers nothing, and will reduce the number of medical malpractice lawsuits, which ultimately could lead to lower health care costs.
Numerous research studies have shown that anger - not greed - is the driving force behind most medical malpractice lawsuits. Patients and families rightfully are frustrated when something goes wrong and a health care provider fails to talk with them honestly about it. In one study, more than one-third of patients and/or families who filed a medical malpractice lawsuit said they would not have done so if they had been given an explanation and apology.
Thirty-five states, including neighboring Ohio, Delaware and Maryland, have passed apology legislation and created disclosure programs for doctors, hospitals and nursing homes to acknowledge regret for an outcome. Not only have claims gone down, but customer service ratings have skyrocketed.
At the University of Michigan Health System, one of the first to experiment with disclosure policies, existing claims and lawsuits dropped from 262 in 2001 to 83 in 2007. During this period their legal defense costs and the money they set aside to pay claims have each been cut by two-thirds, and the time taken to resolve cases has been halved.
The Michigan's health system's chief risk officer, Richard C. Boothman, told the New York Times last May, "Improving patient safety and patient communication is more likely to cure the malpractice crisis than defensiveness and denial."
Similarly, the number of malpractice filings against the University of Illinois has dropped by half since it started its disclosure program just over two years ago. And in the 37 cases where the hospital acknowledged a preventable error and apologized, only one patient has filed suit.
In states with apology legislation, medical mistakes have become teaching opportunities, not potential cover-ups.
We hope that the best of Pennsylvania's trial lawyers will join their colleagues in other states who have stood behind the passage of apology legislation, noting that as advocates for those who have been harmed, their core responsibility is to seek redress for their patients and families in four ways: get answers, ensure accountability, find fixes and achieve swift justice.
Apology legislation accomplishes all four. It allows medical professionals to talk with patients about what went wrong and why. In those cases where a lawsuit was still filed, settlements are often agreed upon in months, rather than years. Families and health care professionals say they are able to heal sooner and move forward with their lives.
The bi-partisan sponsorship of Senator Vance's legislation is an example of how our legislature works on behalf of the people of Pennsylvania. In a year when lawmakers are confronted with tremendous fiscal challenges, they should move swiftly to pass this common-sense cost-saving measure that mirrors the lessons we teach our kids.
Stuart H. Shapiro, M.D.
President and CEO
Pennsylvania Health Care Association
sshapiro@phca.orgMarch 5, 2009