Two small words may help avoid the sting of a malpractice trial

Some patients hold the position that an apology would soothe many wounds caused by physician mistakes. In most states, 36 to be exact, a medical professional’s apology cannot be thrown back at in his face in court. Patient advocates say that those who have been injured but who have received an apology are more likely to negotiate settlements rather than take a case to a trial that could end up with a large jury award. In a country where malpractice payouts equaled almost $4 billion in 2014, such a tactic may be extremely useful for doctors and health systems.

Admission of guilt or admission of kindness?

Some physicians and hospitals used to believe that the less said about medical errors, the better. Even in the beginning of 2010, a shift appeared to be taking place. Doctors realized that explanations and apologies made patients feel heard and important. The University of Michigan Health System (UMHS) began offering apologies and providing the opportunities for discussion when clinical problems arose. UMHS even believes that confronting mistakes and errors in this manner allows an opportunity to learn, which helps prevent them from happening again.

UMHS reported that they shifted from a system of litigation to a claims management model that starts with legal assessment, investigation, analysis, and patient engagement. Sometimes these cases still lead to litigation, but they may lead straight to a settlement or defer a claim altogether. UMHS stated that its number of claims and lawsuits has dropped dramatically since 2001, and that the average legal cost per case has dropped by over half since 1997.

Legal protections in most states

“I’m sorry laws,” more formally known as Medical Professional Apologies Statutes, protect parties from having their condolences or even apologies used against them in court. Many states have a citation for general sympathetic gestures, including apologies, although Illinois’ was declared unconstitutional by the state’s Supreme Court. Six states even have a protection statute specifically related to sympathy and apologies offered in relation to an accident: California, Florida, Massachusetts, Tennessee, Texas, and Washington.

Do patients want to sue?

Leilani Schweitzer, a mother whose one-year-old son died due to a nurse’s mistake, spoke to CNN Health about how she actually did not want to sue. Schweitzer accompanied her son from a hospital in Nevada to one of the best children’s hospital’s in the country, at Stanford, and a sympathetic nurse turned off the loud alarms connected to the patient’s heart to allow Schweitzer to rest. Although the nurse believed that she only turned off the alarms in the patient’s room, she unwittingly turned them off on her pager and at the nurse’s station. The boy died when no alarms alerted medical personnel to his stopped heart.

Schweitzer was offered a full apology, explanation, and unsurprisingly, a financial settlement. Stanford went a step farther, however, and involved Schweitzer in its steps to prevent a recurrence. Years later she was hired as a consultant to reach out to patients after similar issues, and she eventually landed as the assistant VP of communication and resolution–and gave a TEDx talk on transparency, compassion, and truth in medical errors. She emphasized that harmed patients and their loved ones generally do not want to sue, but retain lawyers after they feel that no one is listening or giving them a straight story.

In contrast, Deborah Craven filed a complaint after she believed surgeons tried to hide their mistake: removing the wrong body part. A precancerous lesion was found on her eighth rib, but the surgeons removed part of the seventh instead. When Craven complained of pain after surgery, her doctor took an x-ray and discovered the issue. Another doctor showed up five minutes later and changed the story, telling Craven and her husband that they simply failed to remove enough of the correct rib. Although Yale New Haven Hospital claims that it offered an apology, Craven’s lawyer disagreed. Her lawyer also points out that she did not want to sue immediately, but approached the hospital about a resolution. The hospital decided the case was not significant enough.

It seems that an apology and an explanation is a large portion of what patients feel that they are owed when they file a lawsuit seeking a financial settlement. As hospitals shift from “deny and defend” mode, they may find that the extra face time with patients results in less time, and money, in court.

Highlight on Tennessee: Malpractice alternative under consideration, not all agree on potential effects

Pending Tennessee legislation on medical malpractice could potentially drastically impact the state’s health care costs, some believe. Although action on HB0546/SB0507 was deferred last spring, the Patient Compensation System (PCS) is on the legislature’s agenda as the 109th Tennessee General Assembly is underway.


 The high number of malpractice suits, resulting in high malpractice insurance costs, has long been a concern for the medical community. Even the Government Accountability Office (GAO) got involved in 2003, presenting a report to Congress indicating that insurance premium rates had risen primarily due to claim losses. These losses, combined with investment income decreases and low premium prices offered during times of intense competition, resulted in some insurers leaving the market or becoming insolvent. This resulted in fewer options and less competition.  Nearly a decade later, in 2012, $3.6 billion was paid out in 12,142 medical malpractice claims, with 93 percent coming from settlements.

Defensive medicine

In an attempt to avoid malpractice suits altogether, doctors practice what is known as defensive medicine. Even if they are comfortable with a diagnosis, they may order additional tests to cover their bases, just in case. Surveys have revealed that as many as 75 percent of doctors order these extra unnecessary tests, which could add up to about $650 billion each year, or one in four health care dollars. This expensive idea has at least some merit: Florida data from 2000 to 2009 showed that when hospitals billed more for a patient’s case, the doctor was less likely to be sued. Even when tort reform resulted in caps on damages or early offers of compensation prior to litigation, doctors did not feel comfortable abandoning defensive medicine practices. The PCS system, however, prevents doctors from being sued altogether. In theory, it could completely eliminate the practice of defensive medicine.

Patient Compensation System

The PCS creates a no-fault administrative system comprised of medical experts that review claims. This alternate system would ease the burden on the courts, and would be funded through liability premiums. Evidence shows that medical malpractice attorneys are reluctant to take cases that are likely to have a low payout, but the administrative system would allow those who have been less seriously harmed to recover for their injuries. The Patients for Fair Compensation organization has been fighting for this type of reform, emphasizing the lack of fairness in the current system and its contribution to rising health care costs through the practice of defensive medicine. The organization argues for the likelihood of cost saving through eliminating costs of litigation and the increased predictability of patient awards.

Tennessee bill

In 2015, the bill’s sponsors, Representative Glen Casada and Senator Jack Johnson attempted to garner support for the PCS through a Tennessean article, emphasizing how much of the out-of-pocket burden consumers are bearing due to soaring health costs. They argued that the current tort system is broken, and that Tennessee residents spend $13 billion annually on defensive medicine with employers coughing up $4.6 billion of the amount. They projected that the PCS would save employers between $25 and $30 billion over ten years. Recently, another Tennessean article written by a hospital administrator of 40 years brought up the topic again. He stated that hospital administrators are not able to prevent doctors from practicing defensive medicine, and that the majority of physicians he has known have been sued and many, frivolously. Yet the Tennessee Medical Association  (TMA) and the Steve Volunteer Mutual Insurance Company (SVIMC) strongly oppose the PCS model, believing that costs would actually dramatically increase. TMA and SVIMC said that the current system is actually working and the PCS is “an untested system with significant flaws.”