Protecting patients from medical apology programs

To deal with the aftermath of medical errors, an increasing number of providers are encouraging injured patients to participate in “medical apology programs.” The idea, proponents say, is for patients to meet with facility representatives to learn what happened and why.  It gives the patient a chance to ask questions and it gives providers a chance to apologize, and as appropriate, offer compensation.  These programs are promoted as humanitarian, and, at least in terms of providing an emotional outlet for patients, they are.

The evidence also suggests that they are about something else: money.  Every aspect of how they operate – from who risk managers involve, to what those involved are told to say – suggests a key goal is to dissuade patients from seeking compensation by creating an emotional connection with them.  The data establishes that it works, too.  A 2010 study found that at one major facility, apology programs resulted in fewer injured patients making claims and, among those that did, they accepted a fraction of the amount in settlement compared to patients who made claims before the program was instituted.  For minor injuries, no real harm is done by this; but the outcome can be cataclysmic for seriously injured patients who accept an apology in lieu of compensation.

One explanation for why apology programs are so effective at keeping patients from asking for money is the strategic and legal expertise of those that run them.  When a patient participates in an apology program with a provider, it is only after the provider’s attorneys and risk management experts have coordinated with the provider.  Some go so far as to script what to say, reminding doctors which language could result in legal liability if the patient seeks compensation in court.

Patients, by contrast, are less likely to have legal advice.  Some programs, like the one run by COPIC – the largest malpractice carrier in Colorado – outright forbid participating patients from having counsel.  One 2003 study found that 96% of apology programs do not advise patients to seek legal counsel before participating.  In any other context, it would be laughable to suggest an unrepresented victim should rely on the insurance company responsible for payment to tell them if they are entitled to money and, if so, how much.  Yet, for medical apology programs, this is precisely what can occur.

When an attorney suspects he has committed legal malpractice, the ethical rules require advising the client what happened and recommending they seek independent counsel.  Here, the answer is just as simple: before engaging a patient in a discussion about an act of malpractice, the patient should be advised to seek counsel to represent their interests.  This is, of course, the advice risk managers require physicians require to follow, so one would expect any organization that has its patients’ interests in mind to do likewise.

Gabriel H. Teninbaum is Associate Professor of Legal Writing, Suffolk University Law School.

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  • Anonymous

    Let me say at the outset that I am a lawyer who represents patients in malpractice cases.  We have several providers in Tennessee who aggressively seek out patients who have received improper, injury-causing treatment.  I have no problem with this approach, but I too think in any case involving serious injury the patient should receive the advice of counsel.

    Why?  Because the patient may be making a life-altering decision and needs to understand his or her rights – the legal equivalent of informed consent.

    That is exactly why lawyers cannot privately settle claims that their clients have against them unless those clients have the benefit of independent counsel. Fairness requires that the client get independent advice.

  • http://twitter.com/LittlePatient Haleh

    I am an attorney and also a patient advocate who encourages doctor/patient communication.  Certainly an apology regardless of the motivation is simply the right thing to do and in many cases can even promote healing in a patient who is angry and resentful of a procedure gone wrong but with no permanent damage.  On the other hand, I do agree that this program has the potential of harming a patient who has severe life long negative consequences as a result of a doctor’s negligence.  It is in fact true that a patient may decide not to pursue legal action or perhaps accept a settlement much lower than that to which they are entitled.  Your suggestion sounds like an interesting middle ground but I wonder if it takes away from the apology while encouraging legal action a patient may not be considering. 

    Haleh Rabizadeh Resnick, Speaker, Educator and Author of Little Patient Big Doctor
    http://www.littlepatientbigdoctor.com

  • Anonymous

    COPIC’s program provides for primarily out of pocket expenses up to $35,000.  Patients who accept money in this program are not required to sign releases; therefore, they can still sue.  However, without being advised to consult an attorney, overwhelmingly, they don’t sue.  Kaiser Permanente has an ombuds-mediator program that can provide patients with explanation, apology, and out of pocket expenses, but attorneys are not part of the process.  If a patient wants to have an attorney, the ombuds-mediator process is not available; a more formal, stepped-up process becomes necessary.   The opportunity to maintain a trusting physician-patient relationship may be lost.  

    Involving physicians and attorneys in professional development about these issues is a useful approach that brings both professions into the conversation and creates the space for rethinking traditional models of nondisclosure and litigation.  It doesn’t have to be that way.  A non-adversarial process introduced expeditiously after suspected medical error can be very effective, work to the advantage of all, preserve and strengthen physician-patient relationships, and save money.  Physicians and attorneys need to be aware and understand the possibilities for such a program.   Physicians and attorneys can work collaboratively in the best interests of the patient and the larger community.

  • http://twitter.com/GTeninbaum Gabriel Teninbaum

    Thanks to you all for your thoughtful comments.  I’ve also written a fuller analysis of medical apology programs, which I welcome folks to download/comment on.  It’s available for free by clicking here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1912876

    I also welcome more discussion, ideas and comments, either on-line on KevinMD or privately (I’m at gteninbaum AT suffolk dot edu). 

    @Calgrad:twitter Great comments and I think we’re largely in agreement.  On COPIC, you’re correct to say that they don’t require patients who go through their program to sign a
    release.  In my view, they do that for two reasons.  First, not having patients sign a release avoids COPIC from having to report the payment to NPDB.  Simply put, part of COPIC’s strategy is to call their program a “no fault” system and to create the fiction that they’ll pay for any unanticipated outcome, whether or not malpractice occurred.  As a result, they can represent that any payment they make is just a no-fault benefit, not for malpractice.  Requiring a release, however, would force them to own, and report, the malpractice.  I understand that NPDB is a cause for concern in the medical industry, but from an outsider’s perspective, designing an apology program to end-run a patient-safety regulatory body seems problematic.

    Also, as you suggested, only about 4% of patients who,
    unrepresented, take money from COPIC for their injuries ever
    connect the dots that (a) they’ve potentially been shortchanged
    and (b) they can still pursue an appropriate remedy.  As a result, while the ethics of the procedure are something I’d question, the results have been financially beneficial to COPIC. 

    I suspect one way COPIC would defend this is by saying that they limit their program to less
    serious acts of malpractice, but their definition is worthy of challenge. 
    Their literature references one “success” story of a patient who was injured by a surgical error and required a separate surgery, several days of extra inpatient hospitalization and
    significant time out of work.  Finally, from an ethical standpoint, I’m also troubled by the idea that improperly influencing patients out of compensation for smaller injuries is more excusable than doing so for larger claims.

    @Haleh:twitter : I’d like to think that these apology programs have the potential to help doctors improve their relationships with patients.  As it is, doctors are being put in the middle by risk management, whose mission it is to keep claims costs down.  The easiest way to make it so doctors can do the work of caring for patients is by simply allowing lawyers to handle the legal things and doctors to handle the patient-wellness end of things.  By making a clear delineation between these two processes, it’s best for patient and doctor alike.

    All my best,
    Gabe Teninbaum

  • Anonymous

    Apology is a human thing when errors, intentionally or accidentally happen when humans interact.  The term, medical apology, is not only a theatrical facade, but is also unethical.  The unethical aspect of medical apology lies on managing by risk managers the consequences of harm inflicted on the patient.  According to medical ethics there isn’t a little or big harm.  There is only the principle that the physician competently exercises “first do no harm.”  the theatrical facade orchestrated by lawyers and risk managers perpetuates the god- like image of the physician and tries to minimize the monetary value that the hospital or insurance has to deliver as compensation to the patient who doesn’t even have a name in the physicians memory.  Medical apology reduces the cost of medical malpractice that is the real name for a medical error.

  • M Flynn

    This post is an obscenity. An earnest effort to reconcile medical errors by admitting responsibility is automatically suspect as a way to avoid responsibility?!? Please.
    Shall we instead open the floodgates of legal lampreys upon physicians?Do bear in mind that many MDs are retiring early and far too few are being trained for the tsunami of unfit and chronically ill Baby Boomers that will swamp the system.All you’ll have left will be clipboard administrators at the ready to say “I’m sorry, but we couldn’t find a physician”.
    Good luck with that.