A DAY WITH THE JUDGES A Symposium Covering Medical, Legal, and Ethical Issues at Integris Baptist Medical Center James L. Henry Auditorium Oklahoma City, Oklahoma October 15, 2010

Ethics: Disclosure of Medical Errors and Apology to Patients Presented by Carl T. Hook, M.D., F.A.C.S. President and CEO Of Physicians Liability Insurance Company Oklahoma City , Oklahoma

Proper, Ethical Process for Addressing these Errors and Outcomes Medical Errors and Unexpected, Adverse Outcomes. Can These be Eliminated? Proper, Ethical Process for Addressing these Errors and Outcomes Empathic “I’m Sorry” Honest Transparent Investigative Responsible Apologetic Empathic “ I’m Sorry” Merriam Webster Dictionary defines “Sorry” as the feeling of regret, sympathy, pity.

Reasons for filing a lawsuit claiming medical negligence “The majority of people who file medical lawsuits file out of anger, not greed. That anger is driven by lack of communication, being abandoned by doctors, and no one taking responsibility for his mistakes. Apologizing and offering some up-front compensation for injuries caused by error reduces this anger. Also, if doctors learn from their mistakes, they have a better chance of fixing them and not repeating them.” Quote from Doug Wojcieszak Founder and Spokesman of the Sorry Works! Coalition

Factors That Influence a Plaintiff Attorney to Accept a Case of Alleged Medical Malpractice “ When deciding on whether to take on a plaintiff’s medical malpractice case, we look for the right theme and a value. The theme is what we will show the jury, and we want to be able to demonstrate for the jury that by making our suggested award, it will be doing the right thing. Issues like failures of a healthcare provider to disclose a medical error, to accept responsibility , to communicate simply and truthfully, and to show empathy are examples of important themes. They are also factors which add value to a claim. Jurors relate with the patients and they get angry when doctors fail to admit mistakes. Patients have an inherent right to know about their treatment and when something goes wrong. Keeping information from the patient and his family only makes my case more valuable.” Quote of Philip H. Corboy, Jr. Medical Malpractice Plaintiff Attorney

Apology/ Sympathy Laws Disclosure Laws To date, 8 states have gone a step further and enacted mandatory disclosure statements. These are CA, FL, NV, NJ, OR, PA, VT, and WA. Oklahoma has no Disclosure Law. Apology/ Sympathy Laws In 1986, Massachusetts was the first state to enact such a law. Between 1998-2007, 33 more states enacted some form of Apology/Sympathy Laws. 2005 was the most active year, with 13 states enacting laws with immunity provisions.

Do You Need a Law to Apologize? ABSOLUTELY NOT! The code of Medical Ethics requires disclosure from an ethical viewpoint, and further states that concern regarding legal liability which might result following truthful disclosure should not affect the physician’s honesty with a patient.

Plaintiff Attorney’s Viewpoint “I would never introduce a doctor’s apology in court. It is my job to make a doctor look bad in front of a jury, and telling the jury the doctor apologized and tried to do the right thing kills my case.” Quote of the President of South Carolina Trial Lawyers Association during testimony before the South Carolina Senate, September 2005

This plaintiff’s attorney’s quote is in stark contrast to the information delivered errantly to healthcare professionals for years that you should not apologize lest it be used against you in court. That is not so, as long as the apology and disclosure are delivered properly, and a full understanding of the big difference between a sincere showing of empathy, “ I’m Sorry”, and an apology accepting responsibility. Both done in the correct manner, and under the right circumstances have powerful POSITIVE legal consequences. It is very important for your clinic, hospital, or medical professional liability insurance carrier to have implemented a disclosure program to teach and assist you in this process correctly and effectively.

Reasons to Engage and Utilize the Disclosure and Apology Program Business and Economics Psychological Ethical

Business and Economics Program initially utilized at VA Hospital, Lexington, KY, 1987 Subsequent adoption by: University of Michigan Health System University of Illinois Medical Center Catholic Healthcare West COPIC of Colorado Stanford University Teaching Hospitals Harvard Teaching Hospitals Kaiser Permanente Hospitals Children’s Hospitals & Clinics of MN Johns Hopkins Hospital Multiple Medical Clinics & R.R.G.’s 2008 – PLICO 2010 – CAP-MPT of CA

University of Michigan Health System Adopted their disclosure program in 2001 Total Claims Case Reserves Legal Expenses Case Life Avg. 262 Cases $72 Million $48K/Case 20.3 Months <100 Cases <$20 Million $21K/Case 9.5 Months The Program has changed the medical-legal culture in MI. Medical Staff Satisfaction – 98% Significant Retention Factor – 55%

University of Michigan’s program is based on three simple principles: Apologize and compensate quickly and fairly when medical care causes injury; Defend medically appropriate care vigorously; Learn from mistakes so they are not repeated, further reducing liability exposure.

National Statistics for Medical Professional Liability Claims 65-82% of filed claims are closed without payment 30-13% of claims are settled before trial 5% of claims are litigated, and 87-90% result in defense verdicts Our Oklahoma statistics are 70%, 25%, 5%, and 92%

Psychological Reasons The avoidance of feelings of guilt and remorse for withholding information of error or medical status. The open mind and heart of being honest, transparent, candid. The maintenance of communication with patient and family, which helps maintain doctor – patient relationship with the entire family, and their close friends (This can also be a business and economic reason). The ability to have “closure” after an adverse outcome rather than fear, guilt, depression, substance abuse, domestic and/or practice divorces, or suicide.

The tenants of the Hippocratic Code and the Medical Code of Ethics Ethical Reasons The tenants of the Hippocratic Code and the Medical Code of Ethics

It is the RIGHT thing to do for your PATIENTS and YOURSELVES. Thank You.