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Tort Reform Protocol: Oops! Sorry! The Apology, a new Gold Standard of Practice.

By Steve Lombardi

The claim is made that lawyers and lawsuits are to blame for the rising health care costs. The promise tort reformers make is to trust the bold and unproven assumption that costs of medical care will go down if you get rid of the law suits for malpractice. As a lawyer who cares how much I pay in taxes and health insurance for my family and employees I want to know if that is true. And that is what we are examining this month, tort reform and whether it works as promised.

To understand tort reform we have to understand the assumptions tort reformers make about the legal system. Here is a partial list of the assumptions being made.

• Lawsuits for malpractice are the cause of high health care costs.

• There are no other significant causes that are driving up health care costs.

• That, we can ignore the underlying medical mistakes and the inherent costs associated with fixing these mistakes.

• That, an apology alone is enough to compensate the suffering patient.

• That, patients who suffer due to medical mistakes are being greedy if they file a lawsuit or in some way seek to be compensated for their losses.

• That, capping damages will lower health care costs.

• That, quality of life damages, or non-economic damages, are expendable.

• Those non-economic damages are not economically based.

• That, doctors are fleeing states where non-economic damages are not limited.

• That, costs of malpractice insurance are high compared to what the doctors and hospitals earn.

• That, malpractice claims are the only or the largest thing wrong with our health care system.

• That, unless contained, malpractice suits will cause the standard of care to be lowered.

• That, eliminating malpractice lawsuits will improve the quality of care you receive.

• That, a malpractice claim will never happen to you; because you're not one of those greedy patients.

• That, all injured patients who sue are greedy.

• That, everyone associated with the practice of medicine agrees with these statements.

• That, when doctors suffer a malpractice event, knowing it is wrong, they don't seek redress through the civil justice system.

• That, the amount doctors earn is going down because of malpractice suits and the associated costs.

• That, medical mistakes are infrequent in occurrence.

• That, lawyers are the one's to blame for the number of malpractice lawsuits.

• That, doctors settle "frivolous" lawsuits just to get on with practicing medicine.

• That, frivolous lawsuits are settled all the time because the cost to defend is just too high.

One of the most recent tort reform measures is the apology. It's all the rage for medical service providers to apologize after they make a mistake or when the result is less than optimal. I don't care if they want to apologize, that's a good thing. And I appreciate the doctor's concerns about making an apology. Lawyers do realize that if a doctor apologizes it can later be used to bolster the patient's claim that the doctor thought he did something wrong. Legally that's called an admission against interest. So making the apology off limits from an evidentiary standpoint has some merit. As a lawyer and patient I can rationalize making apologies excludable from later testimony. But it raises another question.

Is an apology alone enough to compensate the patient?

I've been hearing more and more from clients about doctor's apologizing. There are cases where it's being used to an extreme. One patient called me recently to ask about why the doctor might have called them to apologize not once, not twice, but three times. Apologizing is good when you've done something wrong, but apologizing just for the sake of avoiding a law suit seems to indicate a lack of integrity on the part of the health care professional. If you did something wrong then say you're sorry; but don't game the patient with a phony apology, or in this case multiple apologies. I looked at the case and turned it down. While the outcome was not expected I could see nothing the doctor did that was cause of a malpractice lawsuit.

An apology is not the standard of practice; good medical decision-making is the standard of practice. The apology is to quell your conscience and to show the patient you do care. Multiply apologies simply imply the opposite.

What patient-client-voters have to ask themselves is whether lawyers are making this stuff up or if there are really so many frivolous malpractice cases. Let's take a look at some of the cases we see and before you make conclusions as yourself these important questions.

Ask yourself:

1. Are these frivolous medical malpractice cases?

2. What if all you got was an apology?

3. How many apologies would make it right?

4. If you were the patient would an apology satisfy you?

5. Are lawyers and the Courts making too big a deal of these cases?

6. Are these some of the frivolous law suits?

7. Would the lawyers representing these patients be greedy if they represented these patients and filed a lawsuit?

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English doctors amputate wrong legs, testicles and cut out healthy kidneys

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What is a wrong-side surgery? Left or right? Did anyone read the chart?

So let's end listening to a comedian talk about wrong-site surgery. Tom Shillue.

This is hilarious, isn't it? Or are we just being insensitive to the needs of others when we call them greedy?

VA Patient has wrong testicle removed.

http://www.youtube.com/watch?v=SxDx2DlL0UY

Originally posted at InjuryBoard by Steve Lombardi

Full post as published by Des Moines Personal Injury Lawyer on May 08, 2009 (boomark / email).