Chapter 4

Due to a printing error, the graphic on p. 270 of some printed copies is wrong. It should be the following:

Charles Bosk's classic study of how medical professionals respond to error has been reissued in a 2nd edition, Forgine and Remember: Managing Medical Failure (2003).

Questioning whether the threat of malpractice liability actually deters reporting of medical errors and efforts to improve quality, see David A. Hyman & Charles Silver, The Poor State of Health Care Quality in the U.S.: Is Malpractice Liability Part of the Problem or Part of the Solution?, 90 Corn. L. Rev. 893 (2005). Questioning much of the conventional wisdom and popular perception about many aspects of medical malprcatice, and reviewing the Harvard study extensively, see Thomas Baker, The Medical Malpractice Myth (2005).

Whether and how patients should be told about medical errors is receiving additional attention. K.M. Mazor, et al., Communicating with Patients about Medical Errors: A Review of the Literature, 164 Arch. Intern. Med. 1690 (2003); K. M. Mazor, et al., Health Plan Members' Views about Disclosure of Medical Errors, 140 Ann. Intern. Med. 409 (2004); Bryan A. Liang & LiLan Ren, Medical Liability Insurance and Damage Caps: Getting Beyond Band Aids to Substantive Systems Treatment to Improve Quality and Safety in Healthcare, 30 Am. J. L. & Med. 501 (2004); Carol B. Liebman & Chris Stern Hyman, Medical Error Disclosure, Mediation Skills, and Malpractice Litigation (July 2005). Thomas H. Gallagher and colleagues document that, due to liability risks, when physicians discuss their mistakes with patients, they are reluctant to apologize, clearly describe the source and nature of the error, or otherwise fully fully meet the patient's or family's emotional needs to come to terms with the error. Thomas H. Gallagher et al., Patients’ and Physicians’ Attitudes Regarding the Disclosure of Medial Errors, 289 JAMA 1001 (2003).

There is growing interest in the appropriateness and success of using formal apologies to head off medical malpractice litigation:

Doctors' apologies for medical mistakes may not be a cure-all for litigation, but explaining unforeseen outcomes and making early settlement offers have proven effective, say lawyers who have participated in the process in the last decade. The concept is called 'full disclosure/early offer,' and it's spreading. The U.S. Department of Veterans Affairs' Veterans Health Administration--as well as a number of hospital systems and insurers across the nation--are among the entities that have adopted variations of the policy. . . . Plaintiffs' and defense attorneys agree that the program--often referred to as Sorry Works! from The Sorry Works! Coalition, . . . --is a sound strategy miscast in the public perception as a touchy-feely ritual. . . . [H]ealth care providers willing to admit when they have made an error and quickly get on top of it cut down on the anger that leads to litigation. . . .

Michael A. Stidham, whose Jackson, Ky., practice includes representing Department of Veterans Affairs (V.A.) patients, has settled three cases with the Veterans Affairs Medical Center in Lexington, Ky.--two on the same morning--and lost a bench trial in a medical malpractice case that involved a suicide. Stidham said that he likes the system and thinks that its wider application could help to reduce docket backlogs. In contrast, a case against a local hospital can take three to four years to get to trial. 'The only thing I really find lacking in it at this point is that I don't believe they tell the prospective plaintiffs that they have the right to discuss their offers with an attorney. A lot of men and women don't understand why they're receiving these offers,' he said. Stidham noted that 'I didn't always get everything I wanted, but I didn't leave with a bad taste in my mouth, and left with a satisfied client, which is the most important thing.'

Ginny M. Hamm, the special assistant U.S. attorney assigned to the V.A. medical center in Lexington who worked with the former hospital chief of staff, Dr. Steve S. Kraman, to introduce a centerwide disclosure program in 1987, said that a full and lengthy explanation always precedes an offer. Since Hamm did her first disclosure case in 1989, the 'golden rule' has been to tell veterans or their families that they should seek counsel when the hospital meets with them to disclose what went wrong, she said. Kraman, as chief of staff, would speak to the veteran and his family on behalf of the entire medical center, offering an apology and explaining the error, then 'hand off to me for the settlement,' she said. Hamm added that if the V.A. determined that no mistake was made, it would hold a 'closure'meeting explaining its finding to the veteran. Kraman, who now serves on the board of The Sorry Works! Coalition, said that he was aware of only two cases in which angry patients sued for damages. 'The vast majority of people respond in kind. If treated honestly, they don't even want money. They want to see that some good comes out of a bad situation,' Kraman said. . . .

Peter Geier, EMERGING MED-MAL STRATEGY: 'I'M SORRY', 27 The National Law Journal, No. 96, p. 1 (July 17, 2006).
See also Jonathan R. Cohen, Advising Clients to Apologize, 72 S. Cal L. Rev. 1004, 1009 (1999); G.B. Hickson et al., Factors That Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries, 267 JAMA 1359 (1992); Lee Taft, Apology Subverted: The Commodification of Apology, 109 Yale L.J. 1135 (2000); Lee Taft, Apology and Medical Mistake: Opportunity or Foil?, 14 Ann. Health L. 55 (2005); Douglas N. Frenkel and Carol B. Liebman, Words That Heal, 140 Ann. Inern. Med. 482 (2004); Erin Ann O'Hara, Apology and Thick Trust: What Spouse Abusers and Negligent Doctors Might Have in Common, 79 Chi.-Kent L. Rev. 1055, 1079-81(2004); K.M. Mazor, et al., Health Plan Members' Views on Forginiving Medical Errors, 11 Am. J. Manag. Care 49 (2005); Carol B. Liebman & Chris Stern Hyman, Medical Error Disclosure, Mediation Skills, and Malpractice Litigation (July 2005).

An interesting study of various attributes of med. mal. plaintiffs lawyers found that those with more experience are more successful. Catherine T. Harris, Ralph A. Peeples, & Thomas B. Metzloff , Who Are Those Guys? An Empirical Examination of Medical Malpractice Plaintiffs' Attorneys, Wake Forest Univ. Public Law Research Paper No. 03-09 (2003).

A large and prominent medical group in San Diego adopted a policy of transferring patients and all their family members if they file a malpractice claim. In one case, the court ruled that this could constitute illegal abandonment, interference with the doctor-patient relationship, and breach of fiduciary duties if the transfer hampered access to care or lacked sufficient notice and opportunity to find a new physician. Scripps Clinic v. Superior Court, 108 Cal.App.4th 917, 134 Cal.Rptr.2d 101 (Cal.App. 2003).

For additional discussion of the history of medical malprctice, see Catherine T. Struve, Doctors, The Adversary System, and Procedural Reform in Medical Liability Litigation, 72 Fordham L. Rev. 944 (2004).