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    You continue to face exposure if you apologize

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    Two recent studies have refocused attention on the question of whether apologizing for medical errors can reduce the cost of malpractice.


    Steven I. Kern, JD
    The first study, "Liability claims and costs before and after implementation of a medical error disclosure program," appeared in the August edition of Annals of Internal Medicine. The research compared liability claims and costs before and after implementation of a "disclosure-with-offer" program in the University of Michigan Health System. That program mandates full disclosure of a medical error followed by immediate efforts to resolve the matter with a monetary payment.

    The study found that after full implementation of the program, the average monthly rate of new claims decreased significantly, as did the average monthly cost rates for total liability, patient compensation, and noncompensation-related legal costs.

    At first blush, these results seem to strongly support those who view apology and disclosure policies as not only ethical requirements but also a means to reduce the costs of malpractice. A closer review of this study, however, as well as the findings of a second study, "The flaws in state apology and disclosure laws dilute their intended impact on malpractice suits," which appeared in the September issue of Health Affairs, makes it clear that physicians continue to face serious exposure if they apologize or even express sympathy for an unexpected adverse result. Indeed, offering any expression of sorrow may increase expectations that something went wrong, leading to demands for more information and to more distrust.

    MICHIGAN EXPERIENCE RATHER UNIQUE

    The University of Michigan study, despite its encouraging raw data, notes that during the latter part of the study period, malpractice claims generally declined throughout the state. The study fails to compare the statewide rate of decline with the rate of decline experienced within the health system, however. Of course, if the rate of decline mirrors or exceeds that experienced by the University of Michigan Health System, then the conclusions to be drawn from the study would be the opposite of those suggested.

    Moreover, the Michigan experience is rather unique and may have little or no application in most other settings. The health system has a closed staff model, and insurance is provided to the entire staff, as well as to the hospital, through a captive insurance company. As such, when a payment is made in settlement of a case, reports to the National Practitioner Data Bank are circumvented by having the settlement made in the institution's name rather than in the name of the individual caregiver(s) who may have been at fault. As such, a primary concern—that admitting to an error could result not only in payment of a malpractice claim but also in loss of medical license, hospital privileges, and managed care contracts—does not exist within the Michigan system. Nor is there the risk of losing insurance coverage if the admission is made without the prior approval of a malpractice insurer.

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    Steven I. Kern, JD
    The author is a health law attorney with Kern Augustine Conroy & Schoppmann in Bridgewater, NJ, Lake Success, NY, and Philadelphia.

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