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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