Federal bill would promote apology after medical errors

November 21, 2005

Supporters of the notion that apologies are better than malpractice lawsuits got a boost in late September. Sens. Hillary Rodham Clinton (D, N.Y.) and Barack Obama (D, Ill.) introduced the National Medical Error Disclosure and Compensation (MEDiC) Act to encourage hospitals to apologize after medical errors and negotiate fair compensation.

Supporters of the notion that apologies are better than malpractice lawsuits got a boost in late September. Sens. Hillary Rodham Clinton (D, N.Y.) and Barack Obama (D, Ill.) introduced the National Medical Error Disclosure and Compensation (MEDiC) Act to encourage hospitals to apologize after medical errors and negotiate fair compensation.

"Patients and physicians are paying the price for a healthcare system that discourages the communication needed to find and correct the conditions that lead to medical errors," Clinton said in a statement introducing the bill. "We need to do everything we can to put patient safety first. I am introducing legislation that will provide incentives to create a culture of safety that will reduce errors and lower malpractice costs."

It's a familiar concept to Christine Koentopp, director of pharmacy at Children's Hospitals and Clinics in Minneapolis. Children's implemented its own OPS (pronounced "oops") program following a fatal medication error several years ago.

Koentopp has seen both sides of medical errors. One of her children was the victim of a medical error several years ago and recovered. She was also involved when a nurse mistakenly injected an oral drug formulation into a patient's intravenous line. The patient was not harmed, but the parents were told of the error anyway.

"What I wanted to hear as a parent is what every parent wants to hear," Koentopp said. "I wanted to hear what happened and what was being done to make sure it didn't happen to somebody else. The worst thing you can do is try to cover it up. That's what brings on lawsuits."

Children's has seen nearly a 50% drop in malpractice lawsuits since it began the full disclosure program.

"There is pretty good evidence that a healthcare organization doing the right thing and apologizing is extremely beneficial," said Kasey Thompson, director of ASHP's Center on Patient Safety. "An apology is a very powerful message for patients and their families to hear."

MEDiC would create a voluntary federal program to help hospitals revamp their institutional response to medical errors. Instead of stonewalling, hospitals would be encouraged to apologize for errors, compensate patients for any harm, and institute safety programs to reduce future errors. The bill would also create a national database of medical errors and an Office of Patient Safety and Health Care Quality within the Department of Health & Human Services.

MEDiC mimics policy changes advocated by the Sorry Works! Coalition. Founded by public relations expert Doug Wojcieszak, who lost a brother to a medical error, the coalition is pushing a protocol developed by Steve Kraman, M.D., professor of pulmonary and critical care medicine at the University of Kentucky and former chief of staff at the Lexington, Ky., VA Medical Center.

After the VA hospital lost a pair of high-profile medical malpractice suits in the 1980s, Kraman and VA attorney Ginny Hamm developed a new approach. All deaths and unanticipated outcomes were reviewed internally. If an error or mistake in treatment was found, the patient and/or the patient's family would be informed and encouraged to retain an attorney.

As soon as possible, hospital, patient, and attorney would meet. The hospital would offer an apology for the event, answer any questions, and offer a monetary settlement. If no error was found, the hospital used the same communication model to talk with the patient and attorney, answer questions, provide medical records, and try to dispel any fears or doubts.

During the first 13 years of the program, only three medical malpractice cases went to trial. In 2000, Lexington's mean settlement was $36,000 compared with the national VA mean pretrial settlement of $98,000.