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Doctors’ apologies for medical mistakes may not be a cure-all for litigation, but explaining unforeseen outcomes and making early settlement offers have proven effective, say lawyers who have participated in the process in the last decade. The concept is called “full disclosure/early offer,” and it’s spreading. The U.S. Department of Veterans Affairs’ Veterans Health Administration-as well as a number of hospital systems and insurers across the nation-are among the entities that have adopted variations of the policy. Two states-Illinois and Vermont-have recently passed legislation providing for pilot programs to test the efficacy of full disclosure/early offer policies. Tennessee, Texas and New Jersey may soon follow. The concept also is being promoted as a solution to the national debate over medical liability between tort reformers who would create an administrative system of “health courts” and the plaintiffs’ bar and its supporters. U.S. senators Hillary Rodham Clinton, D-N.Y., and Barack Obama, D-Ill., are currently sponsoring the National Medical Error Disclosure and Compensation (MEDiC) bill, a national version of the full disclosure/early offer policy. Plaintiffs’ and defense attorneys agree that the program-often referred to as Sorry Works! from The Sorry Works! Coalition, a Glen Carbon, Ill., advocacy group-is a sound strategy miscast in the public perception as a touchy-feely ritual. Sorry Works! founder Doug Wojcieszak said that health care providers “willing to admit when they have made an error and quickly get on top of it . . . cut down on the anger that leads to litigation. “Patients bring lawsuits when they can’t get answers,” Wojcieszak added. Chris Mather, spokeswoman for the American Trial Lawyers Association (ATLA) in Washington, acknowledged positive aspects in Sorry Works! programs, such as doctors’ apologies and letting people know what happened to them or a family member while in a health provider’s care. However, ATLA is concerned that in some instances the statute of limitations clock could be ticking while such processes are under way, that there is no requirement that patients be told that they can bring their own attorney and that statutes that protect doctors’ apologies could be expanded to protect incidents, Mather said. Key is open exchange Although health care providers and insurers sometimes make their disclosures to unrepresented patients, lawyers say that the key to the policy lies in the open exchange of information, particularly between experienced counsel, that enables the early settlement of meritorious claims. The hospital systems participating in the program include the University of Michigan Health System in Ann Arbor and Baltimore’s Johns Hopkins Medicine. Insurers include COPIC Insurance Co. of Denver and West Virginia Mutual Insurance Co. of Charleston, W.Va. Richard C. Boothman, chief risk officer for the University of Michigan Health System, which implemented its program in 2002, said that “this is not about making apologies, it’s about being honest. “Transparency, honesty and open discussion all make sense to intercept patient claims that become litigation, because once they become litigation, they take on a life of their own,” he said. Boothman came to this realization in his prior private defense practice representing the University of Michigan and the Cleveland Clinic Health System, when “I kept seeing opportunities missed by trying to be smarter in claims handling,” he said. The key is knowing the difference between reasonable and unreasonable medical care: If a health care provider made a mistake, the institution steps up right away and tries to do the right thing, he said. But if it believes there was no mistake, it’s ready to fight. And rather than focus on medical malpractice, emphasis is placed on improving patient safety and physician-patient communica- tion-educating a patient as to the nature of his or her claim and why it may or may not be a compensable error, Boothman said. “Do this, and medical malpractice litigation goes away or is reduced to background noise,” he said. A drop in claims According to Boothman’s testimony to the U.S. Senate Committee on Health, Education, Labor and Pensions last month, claims against the University of Michigan have dropped every year since 2001 despite increased clinical activity over the same period. In August 2001, there were 262 total claims, ranging from presuit notices to active litigation; in August 2002, there were 220 total claims; 193 claims in August 2003; 155 claims in August 2004; 114 claims in August 2005; and since that time, the total number of claims has fallen to fewer than 100, Boothman said. Within the same period, the university has cut its average claim-processing period from 20.3 months to 9.5 months, halving its average litigation costs. Also, its total reserves on medical malpractice claims dropped by more than two-thirds, he testified. Linda D. Turek a partner at Sachs Waldman in Detroit; Peter A. Davis of Davis & Kuhnke in Ann Arbor; and Robert A. Tyler of The Tyler Law Firm in Southfield, Mich., have handled several cases with Boothman and respect his method-even if they don’t always agree with his assessment. Turek, a former emergency room nurse, said that the downside of settling cases is not giving her clients the chance to let a jury hear their story, which is an important part of the process to them, she said. Turek and Tyler both said that they used the full disclosure/early offer policy approach with defendants in other cases. “It’s not the typical approach, but it can be done when you’ve got experienced lawyers on both sides of the fence in a matter,” Tyler said. Davis said that Michigan’s courts have become unfriendly to plaintiffs over the past decade and that, generally, hospitals, doctors and insurance companies often don’t respond to notices of intent to file an action, which plaintiffs are required to file six months before they file suit. “But with Boothman and the University of Michigan, we don’t have to serve notice,” Davis said. “We call him and send him the file and charts-or he comes over to our office and looks at them-and the process begins right away.” Davis added that “[w]e understand the process really well, and have a pretty good idea as to which claims will settle and which won’t. If there’s little chance of settlement, we don’t take the case.” A credibility boost Mary P. Foarde, general counsel of Minneapolis-based Allina Hospitals & Clinics, a not-for-profit network of hospitals and clinics, said that Allina’s disclosure program “started in late 2001, when we had a very bad case and were gun- shy about trying cases.” Allina’s program involves a philosophy similar to Boothman’s-straight talk about mistakes and compensation offers, a vigorous defense of cases in which it believes no mistake has been made and using lessons learned to improve patient care. Allina maintains that the policy of full disclosure/early offer and not settling bad cases “helps our credibility when we do decide to fight a case, and also deters people from suing us on shakier cases,” she said. Chris A. Messerly a partner in Minneapolis-based Robins, Kaplan, Miller & Ciresi and president elect of the Minnesota Trial Lawyers Association, said that if Allina “believes a case has merit, they’re quick to resolve the case,” adding that his firm settles most of its cases against it without filing a lawsuit. Michael A. Stidham, whose Jackson, Ky., practice includes representing Department of Veterans Affairs (V.A.) patients, has settled three cases with the Veterans Affairs Medical Center in Lexington, Ky.-two on the same morning-and lost a bench trial in a medical malpractice case that involved a suicide. Stidham said that he likes the system and thinks that its wider application could help to reduce docket backlogs. In contrast, a case against a local hospital can take three to four years to get to trial. “The only thing I really find lacking in it at this point is that I don’t believe they tell the prospective plaintiffs that they have the right to discuss their offers with an attorney. A lot of men and women don’t understand why they’re receiving these offers,” he said. Stidham noted that “I didn’t always get everything I wanted, but I didn’t leave with a bad taste in my mouth, and left with a satisfied client, which is the most important thing.” The ‘golden rule’ Ginny M. Hamm, the special assistant U.S. attorney assigned to the V.A. medical center in Lexington who worked with the former hospital chief of staff, Dr. Steve S. Kraman, to introduce a centerwide disclosure program in 1987, said that a full and lengthy explanation always precedes an offer. Since Hamm did her first disclosure case in 1989, the “golden rule” has been to tell veterans or their families that they should seek counsel when the hospital meets with them to disclose what went wrong, she said. Kraman, as chief of staff, would speak to the veteran and his family on behalf of the entire medical center, offering an apology and explaining the error, then “hand off to me for the settlement,” she said. Hamm added that if the V.A. determined that no mistake was made, it would hold a “closure” meeting explaining its finding to the veteran. Kraman, who now serves on the board of The Sorry Works! Coalition, said that he was aware of only two cases in which angry patients sued for damages. “The vast majority of people respond in kind. If treated honestly, they don’t even want money. They want to see that some good comes out of a bad situation,” Kraman said. Joanne E. Pollak, general counsel of Johns Hopkins Medicine, said that while Hopkins has had an official full disclosure/early offer policy in place for about three years, it had already been working unofficially with families and their lawyers to resolve claims before starting the program. “When something unexpected happens to a patient in Hopkins’ care, Hopkins either tells the family what happened if it knows or, if not, it investigates what happened and gets back to the family with the facts after it has completed its investigation,” Pollak said, adding that a doctor’s apology is not part of the procedure. Robert J. Weltchek of Weiner & Weltchek in Lutherville, Md., noted that the settlements “don’t happen in one fell swoop, more like in two stages.” “The first thing is to get the doctors out of the case,” he said. “The hospital does this because they’re salaried employees of the hospital, and chances are it’s going to end up paying the judgment anyway, whether the doctors are sued individually or not,” Weltchek said. “Hopkins usually steps up to the plate for the doctor, but admissions of liability and being sorry never have been part of my dealings with them,” he said, adding that taking the doctors out facilitates the negotiations because it “takes the personal out of the case. Hopkins is very good at keeping the emotion out of it.”

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