by Kiren Gopal
At a recent speech before the American Medical Association, President Obama expressed a concern for medical malpractice lawsuits and said that “we need to explore a range of ideas” to tackle the issue. However, the president hasn’t offered much in the way of clarification of his position on medical liability reform. The only indication was a reported comment of a White House spokeswoman who “pointed to his support as a senator for a mediation program known as ‘Sorry Works.’”
In 2006, then-Senators Obama and Clinton introduced MEDiC (National Medical Error Disclosure and Compensation). They wrote in the New England Journal of Medicine that the program would provide grant money to health care providers to “implement programs for disclosure and compensation.” In practice, this means that health care providers would disclose medical errors to the patient, offer an apology, and then try to negotiate compensation. Additionally, the data yielded from the program would be analyzed to determine best practices. The potential benefits of such a program are manifold: improved quality of care, more effective doctor-patient communication, and lower administrative and legal costs.
Successful implementations of similar models are in place at the University of Michigan Health System and the VA Hospital in Lexington, KY. These programs have drawn on scholarship “explaining the importance of apology,” writes Robert Leflar in the Yale Journal of Health Policy, Law & Ethics. Proponents “assert that contrary to long-standing assumptions of liability insurers and hospital defense lawyers, disclosure and apology have in fact the practical benefit of diffusing some of the dissatisfaction that leads to compensation claims…” And Professor Jonathan Todres notes that “[a] study published in the Lancet, the leading British medical journal, found that as many as 37% of medical malpractice plaintiffs reported that they would not have filed their lawsuits if their doctors had sincerely apologized instead of stone-walling…An apology facilitates patients’ emotional healing.”
All of this is not to say that sorry works is a cure-all – or that any type of sorry works program would benefit patients. The details matter. Any federal legislation providing grants to set up these programs must ensure that the statute of limitations is tolled while negotiations for compensation are ongoing. A similar tolling requirement is contained in Vermont's sorry works program. Patients should also be encouraged to obtain legal counsel during negotiations. If safeguards are put in place to ensure that patients can still use the courts if they choose and not be disadvantaged by having gone through the sorry works process, then the program could work well. For patients, it could potentially offer an easier way to obtain needed compensation; for both patients and doctors it could reduce legal defense costs considerably; and most important, by producing information on best practices for patient safety, it would address the root cause of medical malpractice and improve the quality of care.