'Sorry' may work as alternative litigation defense strategy

For several years now, we've covered the medical malpractice crisis and heard a host of ways to address it. Most common are calls for tort reform and, usually, limits on damages for pain and suffering in malpractice cases. But as we report this month, a new strategy shows considerable promise: admit the error and say you're sorry.

This is a substantial departure from the old "deny and defend" strategy that defense attorneys typically recommend. But the adversarial tort system from which the medical malpractice lawsuit derives has some serious limitations. Alternatives that emphasize more open communications have shown some success, according to an article we have in this month's edition ("Saying 'I'm sorry' could stem the tide of malpractice claims," page 25).

At its heart, the medical malpractice lawsuit has three essential goals: to determine whether a medical error has been committed; if so, to determine how to compensate the injured patient; and to deter irresponsible conduct. It sometimes-although not always-achieves all three, but at incredibly high costs.

These costs include high medical malpractice insurance rates, the psychological damage suffered by physicians and patients, and damaged relationships between physicians and patients. Also, because malpractice lawsuits are frequently shrouded in secret settlements, less information is shared about what went wrong, resulting in a diminished focus on preventing medical errors.

Often a physician who wants to apologize for a medical error, or even a poor outcome unrelated to an error, is prevented from doing so. Often a patient, who may want only to find out what went wrong, is forced to take legal action to get some answers. And because the system requires winners and losers, such action is sure to generate plenty of anger. One side, and perhaps both sides, may never see closure of the incident.

These problems have given rise to the "I'm sorry" movement. At least 19 states have passed laws permitting physicians to express sympathy over a poor outcome without fear of it being considered an admission of guilt in a malpractice case. Some hospitals, insurers, and national organizations have gone even further, with protocols that require immediate investigations of a bad outcome. If the physician or medical institution is at fault, an apology is given and discussions initiated that lead to a quick settlement.

The latter approach is being pushed by the Sorry Works! Coalition, which includes doctors, lawyers, insurers, patients, and others dedicated to the full disclosure of medical errors and alternatives to litigation.

Will this work for radiology? Our article offers two views on this question. Dr. Richard Chesbrough, who has written extensively for Diagnostic Imaging on ways to avoid malpractice claims, gives a personal example of how an apology short-circuited a potentially litigious situation. Two other experts, Dr. Leonard Berlin and Dr. Stephen Baker, suggest the "I'm sorry" movement is more of a passing fad than a true solution.

Our view is that the "I'm sorry" movement deserves your consideration- and possibly your support. The movement is still emerging, but preliminary experience indicates it can help avoid malpractice litigation and, in doing so, reduce malpractice costs. The need exists for some scholarly research on the topic. But if a system that stresses internal findings of fact leading to an apology and a settlement-if warranted-offers a better alternative than litigation, the result would be all to the good.

Our current system has created high costs, hostility, emotional damage, and secrecy that interfere with good patient care. An alternative that emphasizes openness and civility, while achieving the essential goals of a malpractice lawsuit without resorting to litigation, would be a considerable improvement over what now exists.