As a dedicated member of MACRMI, I find it very encouraging that hospitals across the country are embracing the concept of admitting medical errors to patients and apologizing for them. This was reinforced in a recent Wall Street Journal article where it was reported that “Evidence has accumulated that the approach can improve patient safety and substantially reduce malpractice costs.” So, now that providers know that apologizing is imperative, for many the question is “Now what?” Lost in the discussion is how and when to apologize and admit the error. As an attorney representing patients, I have seen many instances where the hospital intends to do the right thing, but the message is interpreted negatively by the patient. Most of the time, the admission and apology helps to diffuse the situation and often leads to an early non-adversarial result. However, it is sometimes the case that the apology or admission initially is seen as an acknowledgement that the provider let them down, and the reason may not be easily excusable (e.g. giving the wrong medication, failing to convey a negative imaging report or lab result). In all cases, it is important to remember that those who have been harmed are suffering substantial physical and emotional pain after the event. Their judgments and perceptions are not impartial or objective, especially at the early stages. They are also overwhelmed with grief, depression, and even anger and may not be in a place to deal with speaking with doctors, risk managers, or insurance claim representatives right away.
The WSJ article goes on to state that “The programs require a commitment from hospital administrators and physicians to be transparent about risks and adverse events. Patients can still seek legal representation at any time.” However, for such programs to be effective, patients should be encouraged to seek legal representation early in the process, and certainly before any meeting to discuss what happened and how the provider wants to resolve it. To accept this concept, it is important to view plaintiff’s lawyers differently than many have viewed them. Understand them not as obstacles to resolution, but as collaborators toward it. Many of us understand that one of the hats we wear is as “counselor”, in the broadest meaning of the term. In that role, attorneys can help patients process information and respond appropriately to pave the path toward early resolution while also protecting their rights.
MACRMI embraces the concept of encouraging patients to seek legal representation because we realize that is it not only beneficial to the patient and the process, it is also the ethical thing to do. Plainly stated from an objective point of view, few of us would want our elderly parent, infirm friend, or even adult child having substantive discussions about resolution without legal assistance. Hopefully, this is the mindset all hospitals will have when they decide to embrace the noble goal of transparency.