Doctors Apologizing for Medical Malpractice Won’t Alone Stop Lawsuits

A recent Bloomberg Business Week article caught my eye.  The headline read “When Doctors Admit Mistakes, Fewer Malpractice Suits Result, Study Says.”  It was an eye-catching title because it seemed to indicate that basic human decency was an effective way to reduce unnecessary patient lawsuits.  Some would say that I have a naïve outlook toward human nature, but I believe that most disputes, especially those that can lead to lawsuits, can be resolved by the harming party simply admitting fault and sincerely apologizing for it.  So opening up the article, I expected to have my beliefs vindicated.  Unfortunately, they were not.

The article reported on a program initiated by the University of Michigan Health System.  The new program included protocols whereby health workers were told to inform patients of errors made while they were under their care and to apologize for them.  According to the article, as a result of this new procedure, patients were less likely to follow up with lawsuits simply because fault was admitted and apologies were given.  Reading this alone, one would likely believe that mere honesty on the part of negligent health care providers was enough for most patients.

However, what the article glosses over is the fact that patients were also offered what is described as a “fair settlement” along with the apology.  And what usually comes with settlements in the legal world?  Like the offering of fries with a burger, settlements always come with a healthy side of lawsuit waiver.  Of course less lawsuits will follow after a settlement because the patients who take them generally would likely have to sign away their right to file a lawsuit.

I’m an avid follower of changes in health care practices and trends in medical malpractice lawsuits for this very reason.  In my experience and conversations with patients and friends who become intertwined in health care related disputes, the general reality is that the patient, and not the doctor, hospital, etc., is in the weaker bargaining position.  Health care providers and professional liability insurance carriers are huge corporations with large legal teams.  Going up against either one, let alone both, can be as intimidating as going up against Atticus Finch after he just won the Robinson trial.  For most patients, the notion that health care representatives would apologize, admit fault, and then offer a settlement would probably seem like a godsend.  Not only will the harmed patient not have to deal with the headache of filing and paying to litigate a lawsuit, they’ll instantly get some shekels in return for the scissors sown into their chest.  What a great deal!

Seriously, though it might be easier to instantly take a settlement in exchange for a wrong.  The fact of the matter is that these types of settlements themselves may not be as fair as providers might want their patients to believe.  The article glosses over this important facet.

However, the Michigan program is a step in the right direction.  One of the most difficult things for a lawyer to accomplish in a medical malpractice lawsuit is to establish fault and for patients who have been truly harmed, having their damage vindicated and apologize for is generally what initially spurs them to sue.  So by the program instituting protocols that allow health care workers to admit fault immediately when they’ve done something wrong is wonderful for patients.  However, that alone shouldn’t be incentive enough for a patient to settle.  Long-term harm from injuries sustained by medical malpractice is often unforeseeable without a professional medical examination.  Nor can a settlement be considered truly “fair” for a patient without an experienced attorney to look over it and determine whether it will cover all of a patients potential future suffering.

There’s an old adage that one should never accept the first offer.  Nowhere is this sentiment truer than when the offer is being extended by the notorious greedy health care industry.  Remember, the statute of limitation, meaning the time a person has to file a lawsuit, for medical malpractice is generally one to seven years depending on your state.  So if you find yourself in this situation, remember, you always have time to reconsider.  Don’t end up signing your day in court away.