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The Illinois legislature is considering a pilot program that would encourage doctors and hospitals that commit medical errors to apologize to patients and engage in an arbitration-style proceeding toward settlement. Both supporters and critics of the program, called “Sorry Works,” note that the major stumbling block to its approval will be whether the state Legislature can find common ground on the issue of capping noneconomic damages. The program is a provision in several proposed medical malpractice reform bills being taken up by the Legislature, any one of which could be approved before the legislative session ends in May. “[The program] is something that was not a hard thing for trial lawyers to go along with,” said Keith Hebeisen of Clifford Law Office in Chicago, who testified on the issue as a member of the Illinois Trial Lawyers Association. “It doesn’t cut out the lawyers and it encourages early settlements.” Doctors concede the need for a less hostile environment to accommodate for medical mistakes, but say that the proposed Illinois program is not the answer. “We think that if a physician makes a statement that includes the words ‘I’m sorry’ it should not be used against him in court,” said Dr. Craig A. Backs, a Springfield, Ill.-based internist and spokesman for the Illinois Medical Society. Time limits on admissions A number of states have passed legislation allowing doctors to admit a medical error-often within a set time frame after the error-without it being used against him or her in court. The Illinois proposal does not, and without similar protection in Illinois, the Illinois Medical Society will not support the proposal. “Honesty is it’s own protection,” said Doug Wojcieszak, who launched the national Sorry Works! Coalition in Illinois after losing his brother to a medical error. Wojcieszak argues that the risk to the doctor lies not in his admitting a mistake, but in his lying about it and hoping no one, particularly a jury, finds out. He believes that if a doctor’s admission was introduced in court, a jury would look favorably on a doctor who admitted an error and tried to work out a settlement. Under the proposed program, either a medical provider or a patient can request a review if they suspect a medical error. A root-cause analysis is conducted by a team of outside experts to determine whether the standard of care was met. The patient’s family is advised to get an attorney. If a medical error was found to have occurred, the parties work out a fair settlement. Either party can walk away from the table at any time and take their chances in court. “The school of thought here is that if you ‘fess up, people are less likely to be out for blood,” Hebeisen said. The proposed two-year pilot program in Illinois calls for one hospital to participate the first year, with a second to follow the year after. The results would then be studied to determine if it should be implemented statewide. The Illinois Civil Justice League, which advocates tort reform on behalf of member insurance companies and medical providers, does not support the program. “We just don’t see that it’s going to accomplish anything,” said the league’s Ed Murnane. In addition to protection for doctors’ admissions, both the league and the Illinois Medical Society want any law to include caps on noneconomic damages, such as the model that has kept insurance rates stable in California. If the program passes the Legislature, Illinois would be the first state to implement a pilot program, with Tennessee expressing interest, according to Wojcieszak. Hospitals in Kentucky, Michigan, Minnesota and elsewhere have instituted similar apology-settlement programs on their own without any legislation in an effort to reduce their litigation costs. But trial lawyers say that legislation is vital to encouraging participation by providers that might otherwise run afoul of their insurance carriers if they start admitting guilt. The program in Illinois would encourage participation by allowing hospitals to apply for grants of up to $2 million per year to offset excessive costs, such as reviewing the claims.

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