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medical apology

Medical roundup

by Walter Olson on July 13, 2012

  • How’d we get shortages of hospital and community sterile injectables? Check out the role of FDA Good Manufacturing Practice (GMP) regs, warning letters, and resulting plant closures [Tabarrok, with comments controversy; earlier here, here, here, etc.]
  • California orthopedist sues, wins damages against medical society that took action against him based on his testimony for plaintiff in liability case [American Medical News; earlier here, etc.]
  • Can’t have that: medical apology should be opposed because it “can create an emotional connection with an injured patient that makes the patient less likely to ask for compensation.” [Gabriel Teninbaum (Suffolk Law), Boston Globe]
  • Feds’ war on painkillers is bad news for legit patients and docs [Reuters, Mike Riggs/Reason]
  • New federal pilot project in Buffalo will provide concierge-style home care to emergency-department frequent fliers. Spot the unintended consequence [White Coat]
  • Dastardly drug companies? Deconstructing Glaxo SmithKline’s $3 billion settlement [Greg Conko, MPT] More: Beck, Drug and Device Law, on suits over “what are mostly medically valid and beneficial off-label uses”. Paging Ted Frank: “HIPAA’s Vioxx toll” thesis may depend on whether one accepts that the premised Vioxx toll has been established [Stewart Baker, Ted's recent post]
  • U.K.: “Lawyers seizing lion’s share of payouts in NHS negligence cases” [Telegraph]
  • Silver linings in SCOTUS ObamaCare ruling? [Jonathan Adler and Nathaniel Stewart] “DNC Scientists Disprove Existence of Roberts’ Taxon” [Iowahawk humor] Did Ginsburg hint at the court’s direction on the HHS contraception mandate? [Ed Morrissey, Hot Air]

[cross-posted at Cato at Liberty]

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A new study, based on video simulation, may raise doubts. [ACP Internist, Kevin MD, Ronald Miller]

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Instead, consult higher-ups at the law firm orally about the mistake. Such at least is the advice attorneys are getting, per the ABA Journal (channeling New York Lawyer). Perhaps it’s time for a “Sorry Works” movement to encourage errant lawyers to do the right thing?

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  • “The accusatory legal document begins with several remarks defaming the skills, education, ability, integrity, and honesty of the physician being charged.” [Donald May, State Policy Blog] But hey, don’t take it personally, lawyers say [Mark Crane, Medical Economics] Good luck with that [Chiaramonte/Examiner, KevinMD, more]
  • Law throwing open Florida doctors’ peer review to lawyers was bad enough, but now state high court has applied it retroactively to records created before law was enacted [KevinMD guest post; background at PoL here, here, and here]
  • Even the New York Times hails as “sensible” laws encouraging medical apologies by making them inadmissible as evidence of wrongdoing [editorial]; but see counterexample to the usual reportage [Berlin/Am. Journal of Roentgenology via Buckeye Surgeon]
  • A med-mal defense attorney says plaintiffs would win more often in proposed “health courts” than they do in the cases he handles [Medical Economics, more, and similarly]
  • More evidence, this time from study of orthopedists, that docs rated as cold or callous attract far more than their proportionate share of suits [Orthopedics Today]
  • EMTALA, the law forcing emergency rooms to take all comers, “has created the very conditions it sought to avoid” [Edwin Leap, M.D.O.D.] Watch for “free-standing” ERs that dodge mandate by refusing federal dollars [Scalpel or Sword?, Health Care BS] Semi-defense of law [Over My Med Body]
  • Besieged state of dispersed emergency rooms and specialists is one reason for use of those risky helicopters that fly patients to the big city [Williams/Health Business Blog, M.D.O.D.]
  • Docs should stand up to family members demanding futile or inappropriate end-of-life care [Musings of a Dinosaur] Relatedly, daughter on dying father: “if you give him any more morphine, I will sue you.” [Fat Doctor]

(Most links via the highly recommended one-stop shop for medical blogging, KevinMD, e.g. this post and this one on EMTALA.)

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The recent flurry of press attention to medical apology prompted this anecdotal recollection from Michael O’Hare at Same Facts (May 18) of his work 25 years ago on a Massachusetts state commission to address the malpractice issue:

The story was that soon after [in-house hospital lawyer] Fred arrived, he was assigned to get on top of malpractice claims, and he sat down with six months’ worth of files. All of them, he discovered, began with a collection action for non-payment of a bill. So he ordered the accounting office to send him every overdue account before any efforts at collection, and invited the deadbeat patient into his office for a conversation. Invariably, the patient was withholding payment because he thought he had been mistreated. Often, the patient was right. The next meeting was with the practitioner accused of having screwed up, and the outcome was sometimes an apology and a promise to fix the problem for free (for example, another operation at no charge to retrieve the forgotten sponge), sometimes an expression of regret for a bad outcome with an explanation that the hospital hadn’t actually erred: not everything in medicine works every time. Of course this required that Sanders and Fred drive out fear, so the staffers could be honest and sympathetic.

The result of this was a really spectacular reduction in malpractice costs, even counting in the “warranty service” repairs; I don’t remember the numbers but it was on the order of more than half, partly in fees to defense lawyers, partly in claim payments. Frequently the bill even got paid. The reduction in lawsuits occurred both when the hospital was wrong and said so, and when it was right and said so; it turned out a lot of the injured patients just wanted to tell a live person what had happened to them and get an apology. Of course the public relations benefits are enormous, if hard to measure. And quality always goes up when your own people aren’t afraid to talk to each other about instructive mistakes.

It’s notable that Fred’s pay didn’t depend on how many cases he litigated….

Full post here. More thoughts on medical apology: Melissa Clouthier, May 19.

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“Here’s one of their secrets: They’re not looking merely for cases of physician error; they’re also looking for unsympathetic defendants — for physicians who seem unfeeling.” (Shirley Grace, “The Law: Trial Lawyers Tell All”, Physician’s Practice, Apr. 1 (via KevinMD).

More: Coincidentally, the Times covers the “medical apology” movement this morning: Kevin Sack, “Doctors Say ‘I’m Sorry’ Before ‘See You in Court'”, New York Times, May 18.

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“On the one hand, it should not surprise us that genuine contrition defuses litigation. Anybody who has ever served as a general counsel of a corporation knows — or should know — that most people bring lawsuits because they are angry. … On the other hand, we have created rules of evidence that make it very difficult for people and institutions to apologize. … If you apologize, it can and will be used against you to prove liability. If you don’t apologize, though, you may increase the likelihood of the lawsuit, you avoid coming to terms with your own culpability, and you fuel the rage of the person you injured.

“Two states, Colorado and Oregon, have created a little space for civility by passing laws that bar plaintiffs from introducing a doctor’s apology as evidence in a medical malpractice case. A great start, but why carve out an ‘apology privilege’ just for doctors?” — Jack Henneman of Tigerhawk (May 18). And see Cut to Cure, also May 18.