August 29, 2005, 8:03 a.m.
“Sorry” Works
A prescription for fewer medical-malpractice suits.

Across the years and through the morphine, I recall an anesthesiologist explaining how he goofed during major surgery — on me. I was in a dreadful car crash in 1986. While trying to insert a small antibiotic tube near my heart, a Tucson Medical Center anesthetist accidentally slipped and punctured my lung, making it collapse. As I recovered from that morning's incisions, he detailed his mistake and said he was sorry.

"I have two questions," I groggily declared. "Did you intentionally collapse my lung?"

"No," the doctor replied.

"Were you trying to make me better?"

"Yes," he said.

"Well, then I forgive you. Thank you for putting me back together."

Absent that apology, a gurney-chasing attorney could have convinced me to sue this physician for malpractice. Instead, I was touched by his honesty and felt no malice towards him. As I recuperated, litigation was the last thing on my mind.

Along these lines, a new organization called "The Sorry Works! Coalition" hopes to curb lawsuits stemming from medical errors. It encourages doctors and hospitals to 'fess up when they screw up and offer fair compensation to those they have harmed. This simple idea should brighten the climate wherein doctors often fear the sick as potential litigants, while too many patients treat practitioners like unguarded pots of gold.

Sorry Works! cites several apologies that have vaccinated physicians against lawsuits:

Linda Kenney had ankle surgery in 1999, but nearly died after accidentally receiving anesthesia in her heart. The anesthetist ignored the hospital's advice and apologized for his gaffe. She never sued, and the two have become friends.

"For him, it was like a great weight was lifted from his shoulders," Kenney told Boston's CBS-4 TV. "For me, it was like freedom to move on."

A mis-programmed pump gave a child a fatal dose of painkillers at a University of Michigan hospital. Its medical director apologized to the grieving mother. Despite capturing his words on tape, she refused to sue and accepted an undisclosed settlement.

When another Michigan patient suffered blurry vision after lasik eye surgery, he prepared to sue. The doctor explained that corneal wrinkling is a standard risk in such procedures, and that he did nothing wrong. The patient dropped his suit and let that physician correct the damage.

Lexington, Kentucky's Veterans Administration Medical Center launched an apology policy in 1987. By 2000, it had settled with 170 patients and only thrice went to trial. Its average payment across all claims was $16,000 compared to the VA system's $98,000 average in 2000.

University of Michigan's hospitals have cut routine caseloads from 260-275 claims in 2002 to 120-140 today. Concluding a typical case required 1,160 days (about three years and two months) then, versus 320 days (ten and a half months) now, a 72.4-percent savings. Per-case legal costs have plunged from $65,000 to $35,000. Annual legal-defense expenses have dropped from roughly $3 million to $1 million.

Denver-based COPIC Insurance Companies covers some 5,800 Colorado physicians, of whom 1,942 participate in its 3-R's Program. Since late 2000, this initiative has sought to "Recognize, Respond [to], and Resolve" medical errors.

"Through last March 31, we have had 1,187 documented discussions among patients, families, and providers," says COPIC's George Dikeou. "Of these, 807 were resolved through enhanced communication. We often find that patients just want to know what happened and that their doctors care about them. In 352 cases, some payment was made. Finally, 28 went to the claims department as regular cases, of which 11 were settled without attorneys. The remaining 17 remain open."

Dikeou added that "the average payment in 3-R's cases is $5,586, while the average outside the program is about $284,000."

"We do not ask patients for releases in the 3-R's program," Dikeou notes. "So, they still have the right to sue, but that has not happened."

"The majority of people who file medical lawsuits file out of anger, not greed," says Sorry Works! founder Doug Wojcieszak. "That anger is driven by lack of communication, being abandoned by doctors, and no one taking responsibility for his mistakes. Apologizing and offering some up-front compensation reduces this anger. Also, if doctors learn from their mistakes, they have a better chance of fixing them and not repeating them."

As Wojcieszak suggests, beyond legal and economic benefits, apology policies have clinical advantages. They preserve doctor-patient relationships, boost physician morale, and help correct errors.

"If you sue your doctor or hospital, that is the last time you walk in there as a patient," says Steve Kraman, MD, a pulmonary critical-care specialist, University of Kentucky professor, and former chief of staff at Lexington, Kentucky's VA hospital. "They're the enemy, you're the enemy, and you go elsewhere for health care. By treating people decently up front," Kraman found, "not only did they remain within the system, they felt even better about us than they did before. Some people felt so good about the way they were treated, they wanted to get even closer to the hospital. We had people who signed up as hospital volunteers."

In terms of morale, "Doctors already beat themselves up about making medical errors," Kraman adds. "Now they can get involved in the process of trying to correct the situation. Doctors and nurses feel better about being able to make things right."

As for fixing errors, the apology approach "allows you to talk about these things in the open. What frequently happens in medical malpractice is that you don't want the other side to get any of your information. So, if you look at an error, you don't want memos and e-mails flying around about this. If you discuss this at a morbidity and mortality conference, participants may be reluctant to leave paper trails for fear of having plaintiffs' attorneys exploit their words."

"Since we attacked problems up front," Kraman continues, "there was no need to hide anything. We had a nice paper trail. In most cases, these were system errors or personal errors that were the result of a system that was difficult to negotiate. When we identified an error, we sent in a team to see what happened and what we could do to keep it from happening again."

Seventeen states have enacted apology laws; some make remorseful words inadmissible in court if uttered soon after mishaps occur. U.S. Senators Max Baucus (D., Mont.) and Mike Enzi (R., Wyo.) introduced the Reliable Medical Justice Act on June 29 to provide federal funding for apology pilot projects around the nation. While the need for federal grants here is a mystery, Washington should encourage this concept without reflexively whipping out the checkbook. Implementing it in VA hospitals would be a solid start.

After all, when trying to cure medical-malpractice lawsuits, "sorry" shouldn't be the hardest word.

— Deroy Murdock is a New York-based columnist with the Scripps Howard News Service and a senior fellow with the Atlas Economic Research Foundation in Fairfax, Virginia.