“Sorry, Here’s a Check” Approach to Medical Malpractice Leaves Patients at Risk
Posted by Howard Janet on Apr 25, 2012 in Medical Malpractice
Seven Massachusetts hospitals have launched a “quick apology-then-settlement” program for people hurt by medical malpractice. But this approach isn’t likely to improve patient safety. The program also contains a glaring flaw: it does not require patients who are offered a settlement to be represented by legal counsel, yet it asks them to sign away their legal rights.
The program is supposed to work this way: a patient is hurt, a doctor or nurse reports it, and the hospital investigates. If the hospital (who would be the defendant in any lawsuit) decides malpractice has occurred, it gives the patient a prompt apology and an offer of financial compensation. If the patient accepts the offer, he must sign away all legal rights to sue the hospital, no matter what he may find out later about his case or what he discovers down the road about his future medical care needs.
What is wrong with this picture? Let me count the ways:
- The hospital, in effect, is put in charge of investigating itself.
- A lay person has no idea how much medical care costs, especially if the medical negligence created chronic or life-long consequences. Lawyers employ specialists to help their clients figure out what their care needs are going to be before defining damages or accepting a settlement. How could a hospital try to foist a settlement offer on an injured person without ensuring this take place?
- The entire process is designed to favor the hospital and subvert the legal rights of the injured party.
Suffolk University Law professor Gabriel H. Teninbaum notes the differences in how medical malpractice and legal malpractice are handled in his 2011, Law Review article, “How Medical Apology Programs Harm Patients.”
“When an attorney suspects that he has committed legal malpractice, he must disclose it to the client and recommend that the client seek outside counsel to get objective legal advice on how to proceed. By contrast, when a doctor suspects that he has committed medical malpractice, at many facilities he is expected to employ a set of protocols that discourage the injured patient from considering the need for compensation. Yet, while an attorney could be disbarred for this sort of behavior, medical apology programs widely receive praise.”
The architects of Massachusetts’ “Road Map to Reform,” as it’s called, contend that if doctors and nurses aren’t quelled by a fear of lawsuits, they will be more willing to report mistakes, which in turn will result in better protocols for preventing mistakes. Translation: patients who are victims of medical malpractice and who file lawsuits are to blame for the fact that hospitals continue to have abominable patient safety records.
There is no valid evidence that limiting patients’ legal rights has any impact at all on hospital patient safety. But there is ample evidence that when hospitals enforce certain safety protocols, such as “checklists” before and after surgeries, hand washing and body marking (“this is the spot to be operated on”), errors are significantly reduced.
The Massachusetts program needs to require that patients receive legal counsel before accepting any financial offers or signing away their legal rights. Then it needs to turn its attention to the real causes of medical malpractice. Only then will Massachusetts patient care really be on the “road to recovery.”