“Love means never having to say you’re sorry” is an oft quoted line from the novel and movie Love Story. But backed by new state laws, modern medicine has given it new meaning. Doctors and hospitals are now being encouraged to say “we’re sorry” when they make a serious mistake and there’s the potential threat of a medical malpractice suit.
So don’t be surprised when something goes wrong in a doctor’s office, clinic or hospital and you get a registered letter of apology. It’s all part of a plan to avoid long-running feuds, which not only run up legal fees and costs to insurers, but also take up court time and ultimately add to everyone’s medical costs.
Medicine has come a long way since the 1993 movie Malice in which actor Alec Baldwin ranted that, as a famous surgeon, “I am God.”
Experience, legal suits and state laws have now convinced both doctors and hospitals to be a bit more humble — particularly in Massachusetts, which has felt the sting of higher medical costs since 2006 when it passed the predecessor to 2010′s Affordable Care Act, aka Obamacare.
Like its successor, the Massachusetts law didn’t initially put any constraints on runaway legal costs from malpractice cases which were making medicine more expensive. But all that changed in 2012 when the Bay State, along with several other states, developed strategies to curb malpractice suits and resolve them more quickly and inexpensively.
‘Disclosure, apology and offer’
What Bay State legislators discovered was counterintuitive: Disclosing a mistake and apologizing for it was more effective at avoiding a lawsuit than covering it up. And the next step toward resolving it was making an offer of compensation, which could lead to a quick settlement rather than a prolonged court battle. All this happens within a 180-day “cooling off” period.
The final step was in-house: Correct what happened so that it didn’t happen again, rather than risking the possibility of further lawsuits while still fighting this one. Florida, New Hampshire and Oregon are pursuing similar initiatives.
All of this can’t come soon enough. Aon Analytics’ 2012 Hospital and Physician Professional Liability study found that medicine is in a state of flux as more and more doctors become part of hospital networks. “The family doctor is not extinct, but he’s a rarer find,” says its lead author Erik Johnson.
The vast majority of hospitals are self-insured against malpractice, except in the most extreme cases. And many of the most important reforms of Obamacare will kick in 2014. Democrats who voted for it hope that medical costs won’t skyrocket and fulfill the gloomy expectations of their Republican counterparts.
Once again malpractice costs are rising slowly, after being knocked back in the last decade. But even more critical: the cost of “defensive” medicine.” This happens when doctors and hospitals perform more expensive tests than needed to avoid even the hint of impropriety.
The annual cost of defensive medicine varies from $5 billion — if you listen to lawyers — to $300 billion if you believe health providers, but $60 billion seems to be a fair estimate of this unnecessary care, says economics professor Amitabh Chandra of Harvard University.
Leave it to lawyers
And here is my rationale for why you shouldn’t leave this in the hands of lawyers. When I was a young newspaper reporter a famous broadcast news journalist and her escort tried to drive out of a restaurant parking lot late one night. Instead they drove into the nearby ungated canal. The car went in upside down and they both drowned.
Why didn’t a guardrail surround the restaurant parking lot? As it turns out, it should have since the same thing happened to a local businessman the previous year. His family sued, but the defense attorney decreed that the barrier wouldn’t be installed until the case was settled because “it would make us look guilty.”
Sadly that lawyer adhered to the letter of the law: Innocent until proven guilty.