Experts Urge Building Support System Before Jumping on Apology Bandwagon: ‘Be Proactive, Not Reactive’

Six years ago, in August 2001, the University of Michigan Health System (UMHS) had 262 pre-suit claims and lawsuits pending. In late 2007, four years into its innovative approach for addressing medical errors, the health system had just 83 pending cases.1 Comprehensive transparency and medical error policies at UMHS and other institutions (such as the University of Illinois, Stanford, and the Harvard Partners Organization) have shown that it is possible to reach a better bottom line and patient safety outcomes by eschewing the deny and defend route that has become all too common.2

Shouldn’t every physician, surgeon, and community hospital follow suit? The chorus of approval for disclosure and apology, fueled by ethical standards and now regulatory requirements, may be drowning out some possible downsides, according to experts we interviewed. Attorney Michael E. Clark, JD, of the Houston partnership of Hamel Bowers & Clark LLP, cautioned, The devil’s in the details.

A former federal and state prosecutor and now a health care defense attorney, Mr. Clark is a Governing Council member of the American Bar Association’s Health Law Section and an Adjunct Professor of Law at University of Houston Law Center. It’s one thing to have a unified institutional approach to help foster transparency and responsibility regarding medical errors. But Mr. Clark believes that otolaryngologists in private or group practices, and who practice in community settings, would do well to proactively think through and develop a coherent risk management strategy before launching into full disclosure.

Unlitigated Cases: A Sleeping Giant?

A colleague of Mr. Clark’s, attorney and physician advocate Charles Key, JD, of the law firm Wyatt, Tarrant & Combs LLP, in Memphis, TN, fears that positive results reported by UMHS and others could cause unintended consequences. The effect of early intervention apologies on decreases in medical liability payments is very encouraging, but it flies directly in the face of what defense counsel experience day to day, he noted. When something goes wrong, many of us look to ourselves first. We wonder: ‘What did I fail to do that would have made a difference here?’ This is a natural response, but it’s the last thing you want your client to do-to sit in a room and say, ‘Oh, I messed up; I’m so sorry.’

Mr. Key pointed to a 2007 study by Studdert et al., which concluded that routine disclosure could very well expand litigation.3 The authors referred to the great unlitigated reservoir of cases (as most medical errors do not result in litigation) and found, in their models, that disclosure might prompt a number of new claims that would outweigh the number of deterred claims.