Bill aims to let docs apologize

Most people are taught as children to apologize when they have done something wrong and hurt another person. But for doctors, depending on what is said, that can create legal problems.
Now Rhode Island legislators – and their counterparts in several other states – are considering legislation to keep expressions of sympathy and explanations of medical errors from being used as evidence in malpractice suits. Twenty-nine other states already have laws excluding expressions of sympathy from evidence.
“When a patient has a less than desirable outcome, they should be able to have a frank discussion with their physicians,” said Steve DeToy, director of government and public affairs for the Rhode Island Medical Society, which wrote the bill now before the General Assembly. “But the way [current] law is written, physicians would be putting themselves at risk.”
Some, however, view the proposal as too broad.
“This is a back-door attempt to give a broad evidentiary exclusion,” said John P. Barylick, a principal in Wistow & Barylick Inc., which has represented plaintiffs in malpractice suits for 25 years.
“If it were simply a matter of keeping out of evidence benevolent statements and expressions of sympathy,” Barylick said, “no one would have a problem with that. But the statute purports to keep out of evidence statements of what a doctor did wrong.”
The Joint Commission on Accreditation of Healthcare Organizations (JCAHO) requires, as part of its standards for accreditation, that health care providers report all medical errors to the overseeing facility. They must also give a clear explanation to the patient and, as appropriate, the family of the outcome of any treatment or procedure, including unanticipated outcomes.
The Medical Society’s bill would exclude statements made in accordance with the JCAHO standards “or similar standards,” noting that “to the extent that such statements are mandated … it would be unfair” to use them against providers in court.
But Barylick and the Rhode Island Trial Lawyers Association, on whose board he serves, argue that the language is too vague, and because it relies on JCAHO’s standards, it would allow the rules to change without further legislative action.
“The bill incorporates a standard that’s not defined,” said RITLA president Jeffrey M. Padwa, of Padwa Law in Warwick. “I couldn’t find the JCAHO standards, and then it talks about similar standards. The devil is in the details, and it’s completely overbroad, because nobody knows what standards apply.”
“That’s not sound law, and that’s not sound policy,” Barylick said.
But Rep. Joseph McNamara, D-Warwick, sponsor of the House version of the bill, disagrees.
“I believe those standards are really clear, and if [RITLA] has language they would want instead, we would be willing to sit down and listen to any suggestions that they have,” he said.
“But this is the response we’d expect to get from the trial lawyers association,” he added. “Any attempt that we’ve had during the last five or six years to reform medical malpractice they’ve been opposed to. The real issue is the high cost of medical malpractice [insurance], and the trial lawyers are driving that cost.”
Even some medical malpractice attorneys agree that this is a positive bill that could benefit patients and might even reduce the number of malpractice lawsuits.
“There have been studies that have shown that doctors who are open and candid with their patients tend to be sued significantly less,” said Mark B. Decof, a principal of Decof & Decof in Providence, which gets 80 percent of its business from representing plaintiffs in medical malpractice suits.
“So I’m aware of those studies,” Decof added, “and my reaction to the bill is, I don’t see how anyone could argue against it. I think it would go a long way to advancing the doctor-patient relationship.”
The Sorry Works Coalition, an Illinois-based organization that encourages medical facilities to implement policies of full disclosure with regard to medical errors, said there is proof that when providers talk with patients about adverse outcomes, they’re less likely to be sued.
The University of Michigan Health System cut its lawsuits in half, reduced litigation expenses by $2 million and reduced its needed reserves for malpractice coverage by $50 million since it implemented Sorry Works’ plan in 2001, according to the group.
That plan, which does not entail excluding evidence, encourages doctors to express empathy about the adverse outcome and investigate the incident. If there was a medical error, they are to discuss compensation; if there is none, they are to explain what went wrong.
“When a doctor runs and hides, they shouldn’t be surprised when a patient goes to the attorney,” said Doug Wojcieszak, founder of Sorry Works.
Decof also disagrees with RITLA’s concern that too much evidence could be off limits. He said that it wouldn’t really change anything, except for making the process better for the patient.
“Should this bill come into law, I don’t see any way that it would prevent a patient from bringing legal action,” he said. “Based on my 30 years’ experience, doctors never come into court having admitted that a mistake was made, so this would not provide a new burden to overcome in order to win. But the patient understanding what has happened would be a benefit.”