Big news yesterday: announcement of a new medical malpractice “apology and settlement offer” program set to begin at seven Massachusetts hospitals. This is supposedly to reduce lawsuits – and no doubt, it will. (Although it's bound to make little difference in terms of patient safety. See here.) From what we can tell, it is supposed to work this way: A medical error occurs. A doctor or nurse reports this to the hospital. The hospital investigates. The investigatory process is controlled by the hospital – presumably the hospital’s lawyer, risk manager and staff, essentially the defendant in a potential malpractice case. If they decide malpractice has occurred, they apologize and make an offer of compensation to the patient. And if the patient takes it, they must sign away all of their legal rights, no matter what they later discover about the negligent care they received, or their future medical needs.
Now, they say that patients will be “encouraged” to hire a lawyer to evaluate whether an offer is fair. But counsel is not required – and that’s a big problem. In fact, since the goal of the program is to prevent litigation, won’t the hospital’s risk managers try to decide all of this before the patient becomes suspicious that malpractice may have occurred and consults an attorney? What happens in a situation where a patient is catastrophically injured and is pressured by the hospital to resolve their case for a fraction of what they need or deserve, particularly when it comes to future medical expenses? In fact, how could any lay person ever be capable of making a reasoned decision as to what they may need in a serious case, without the assistance of counsel or their own expert. Sound fair to you?
It didn’t to Suffolk University Law professor Gabriel H. Teninbaum, who took a long look at apology programs around the country, including the University of Michigan hospital system (UMHS) on which the new Massachusetts program is based. The devil is in the details in any program like this, and unfortunately, without more safeguards, this particular program may be sending many patients and their families straight to Hades. Here’s why.
The UMHS program, developed by former med mal defense lawyer Richard Boothman who is now risk manager at UMHS, allows patients to be represented by counsel – but doesn’t require it. (Other programs require counsel.) And while under the Massachusetts program, “hospitals will encourage patients to hire a lawyer to evaluate whether an offer is fair,” there is no indication – yet – that this would be required before a patient signs away their legal rights as the request of a hospital with a clear conflict of interest. Writes Teninbaum,
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 is a representative of what UMHS does, then the organization derives significant financial benefits by paying less money to patients injured by medical errors.
Her name is Michelle Hereford, a hospital administrator who is trained as a clinical nurse. In other words, unlike most family members, knew quite a bit about appropriate patient care. Hereford’s 44-year-old husband and leukemia patient was killed after his bowel was perforated during surgery at a University of Michigan hospital, and fecal material spread into the rest of his body and gave him sepsis. Michelle tried to get the hospital to respond to increasing symptoms that she witnessed but even with her expertise, she failed. She filed a complaint with the University of Michigan Medical Center, claiming that the perforation in his bowel was diagnosed too late. Rick Boothman apologized to her but admitted no mistake, instead issuing a patronizing statement that she wasn’t in the loop with the other doctors treating her husband. She put it this way: “It was a canned letter. It was not an admission, and it wasn't a denial. They're minimizing their risk.” This experience spurred Michelle into become a patient safety activist, we assume to try to fix the University of Michigan system.
The UMHS system allows attorney involvement, but does not expressly recommend it. Let’s hope the Massachusetts system doesn’t just allow it, doesn’t just recommend it, but requires it - before any patient is asked to sign away their legal rights.