A group of six healthcare organizations announced on April 18th, 2012, that the new “Disclosure, Apology and Offer” process will be piloted this year in seven Massachusetts hospitals. This process will require disclosure to patients when a medical error is made during the course of the patient's care. Once the error is investigated, an apology is issued and financial settlement is offered in lieu of legal action.
“This idea that you have to wait for five years (for a suit) to play itself out in the legal system before you can get an explanation that you need to heal, I think it’s unacceptable,” says Dr. Ashley Yeats, chief medical officer of Beth Israel Deaconess Hospital-Milton. “ It takes precious time away from patients, it takes time away from physicians, and it ultimately takes good people, I think, out of the health care system.”
While more transparency among health care providers is a good thing, it is cause for concern when the entire process can be controlled by the hospital itself. If it is decided that malpractice has occurred, the hospital then apologizes and makes an offer to the patient. In accepting that offer, the patient signs away all of their legal rights - even if the patient requires future medical treatment that the settlement did not account for.
The hospitals say that patients will be “encouraged” to hire their own counsel to evaluate whether an offer is fair, however counsel is not required. And since the overall goal of the program is to prevent any litigation, a representative from the hospital would most likely offer a settlement that would be keeping in line with the hospital’s need to lower medical malpractice costs. How could the average person be capable of making a fair minded decision as to whether the amount in the settlement is a reasonable number without the assistance of an attorney that is looking out for your best interests?
Suffolk University Law professor Gabriel H. Teninbaum reviewed apology programs across the country and wrote this about the University of Michigan hospital system (UMHS) on which the Massachusetts apology program is based:
“Patients need an advocate because programs like UMHS have attorneys whose primary obligation is to protect the assets of their organization. This dynamic results in what is, in actuality, an adversarial environment that simply uses collaborative language. Without legal advice of their own, patients who take part in apology programs must trust that risk managers would violate their obligation to their own employer (of keeping overall costs low), in order to give them an appropriate settlement. There is simply no evidence that this has, or will, occur and no program has released any data to that effect…
In other words, it has not been made public whether patients with valid claims for malpractice are giving up some compensation to which they are entitled in exchange for the warm discussions UMHS provides. If the small glimpse provided by [one anecdotal] case isrepresentative of what UMHS does, then the organization derives significant financial benefits by paying less money to patients injured by medical errors.”
If an “apology” is accepted by the patient, an apology protection provision would be included that would prevent a litigant from “parroting back” a physician's acknowledgment of error while in a lawsuit. Even though these systems allow the involvement of an attorney, they should require it. It should be certain that all victims of medical malpractice are fully aware of their options. And while honesty is the best policy, in this instance it comes with a caveat - your legal rights.
It cannot be emphasized enough that people need legal counsel when making important financial decisions. Considering settlement of a personal injury claim - medical malpractice or otherwise - is an important financial decision. In addition to surrendering certain legal rights the decision will impact your life for years to come. Getting legal counsel in advance can help insure that you make the right decision and protect your legal rights.
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