Massachusetts Gov. Deval Patrick signed legislation on August 6 that emphasizes an approach of “disclosure, apology and offer” to medical malpractice claims. The law reportedly makes the state the first in the nation to have in place a comprehensive legislative scheme that facilitates a so-called “medical apology program” to deal with medical errors and malpractice.
Many states have enacted “apology laws” for healthcare workers. The laws provide for the expression of regret, sympathy or compassion by physicians and other healthcare providers without fear of the apology being used against them in a malpractice suit. Currently, Maryland law states that an apology or statement of regret by a doctor is inadmissible in a medical malpractice trial. However, if there is an admission of guilt in conjunction with an apology it can be used in court.
More and more hospitals are disclosing errors to patients soon after they occur and even encouraging patients to retain legal counsel to assist in resolving claims without the need of a lawsuit. The Baltimore Sun covered this trend in a recent story where medical risk managers and medical malpractice attorneys involved in resolving cases this way were asked about the pros and cons of this new collaborative malpractice claims resolution process. While all believed the patient/client benefited significantly from the early resolution of a claim without litigation and also benefited from being able to put the money to work earlier for investment or medical care purposes, the risks of collusion and conflicts of interest were also acknowledged.
The benefits of a pre-lawsuit admission of fault and willingness to attempt settlement early has advantages and disadvantages for physicians, patients and lawyers.
Physicians have described Massachusetts’ DA&O approach as an improvement to the current legal system, which, some say, with its emphasis on faultfinding and lawsuits leads to a “deny and defend” attitude in the medical community and causes physicians to practice defensive medicine that contributes to higher health care costs.
Patient advocates fear that, with “medical apology programs” in place, patients will be persuaded to accepted settlement offers worth far less for their injuries because the real aim of the programs is cost-containment. Indeed, a 2010 study of the programs found that fewer patients made malpractice claims after the programs were put into place and that those who made claims accepted smaller settlements.
Some hospitals are even offering the names of plaintiffs’ lawyers from their own lists of preferred attorneys. But, being on the hospital’s list of preferred attorney list has advantages and disadvantages for lawyers. If the lawyer agrees to accept the institutions’ referrals, the legal practitioner must also agree to a significant reduction of legal fees as a condition of being part of the hospital’s preferred legal provider list.
Attorneys must also be mindful of potential conflicts of interest affecting their unfettered duty to zealously represent clients. Critics of this new scheme for dispute resolution question whether attorneys on the “go-to lists” will work hard enough for their clients when the outcome of one case may affect future hospital referrals. And, while some lawyers discount this concern by stating that they always have the right to reject any offers in favor of litigation, it seems self-evident that the lawyers’ duty to zealously represent their clients may be impaired by a desire to make everyone on both side of the negotiation table satisfied.
Other concerns, include whether, under the medical apology programs’ emphasis on a quick settlement over protracted litigation, the extent of the clients’ injuries and future economic needs — whether medical or income loss — are understood and included in the calculation of future economic losses stemming from the accident. It is not uncommon for clients, in the years following settlements, to question whether they should have settled their case, particularly if it turns out the money intended to cover future losses is inadequate to cover extraordinary medical needs not anticipated when the case was settled.
The unique relationship between the attorney and the medical institution may later be seen as collusive and against the client’s best interests and may expose the attorney to a higher likelihood of being second-guessed for an otherwise well intentioned attempt to resolve the client’s claim quickly and without the typical burdens that come with protracted medical malpractice litigation.
Plaintiffs’ lawyers are certainly taking a risk when representing clients in such a novel process. What may be perceived by all to be a win-win situation now may later on turn out to be a lose-lose situation for the attorney and the client.
Belsky, Weinberg & Horowitz has been fighting for the victims of negligence for many years. Call us at 410-234-0100 or email us for a free consultation and let us help you.