Disclosure, Apology and Offer

A coalition of six healthcare organizations announced on Wednesday, the 18th of April, that the new “Disclosure, Apology and Offer” process will be piloted this year in seven various Massachusetts hospitals. This process requires disclosure to patients when a medical error is made and something goes wrong over the course of the patient's care. The error is then investigated, an apology is made, and financial compensation is offered in lieu of legal action.

“This idea that you have to wait for five years (for a suit) to play itself out in the legal system before you can get an explanation that you need to heal, I think it’s unacceptable,” says Dr. Ashley Yeats, chief medical officer of Beth Israel Deaconess Hospital-Milton. “ It takes precious time away from patients, it takes time away from physicians, and it ultimately takes good people, I think, out of the health care system.”

While more transparency among health care providers is a good thing, it is cause for concern when the entire process can be controlled by the hospital itself. If it is decided that malpractice has occurred, the hospital then apologizes and makes an offer to the patient. In accepting that offer, the patient has just signed away all of his legal rights -- even if the patient requires future medical treatment that the settlement did not cover.

The hospitals say that patients will be “encouraged” to hire an attorney to evaluate whether an offer is fair, however counsel is not required. And since the overall goal of the program is to prevent any litigation, a representative from the hospital would most likely offer a settlement designed to minimize what a patient could likely recover if he was represented by an experienced malpractice lawyer. How could the average person decide if the offer is reasonable without the assistance of his own experienced counsel?

Suffolk University Law professor Gabriel H. Teninbaum reviewed apology programs across the country and writes this about the University of Michigan hospital system (UMHS) on which the Massachusetts apology program is based:

“Patients need an advocate because programs like UMHS have attorneys whose primary obligation is to protect the assets of their organization. Without legal advice of their own, patients who take part in apology programs must trust that risk managers would violate their obligation to their own employer (of keeping overall costs low), in order to give them an appropriate settlement. There is simply no evidence that this has, or will, occur and no program has released any data to that effect…

In other words, it has not been made public whether patients with valid claims for malpractice are giving up some compensation to which they are entitled in exchange for the warm discussions UMHS provides. If the small glimpse provided by [one anecdotal] case is a representative of what UMHS does, then the organization derives significant financial benefits by paying less money to patients injured by medical errors.”

If an “apology” is accepted by the patient, an apology protection provision would be included that would prevent a litigant from using the apology against a hospital or doctor, as proof of negligence, if a lawsuit were filed. This fact alone, calls into question both the sincerity of the apology and the true reason it was made. Was it to save the defendant money or merely an effort to persuade a grieving plaintiff from pursuing fair compensation in the legal system?

People should also be aware that this “apology” program may be no more than a subterfuge. Medicare now refuses payment of medical bills that were caused by medical negligence. If the hospital can “slip in” an apology before Medicare reveals its negligence, how many lawsuits will it avoid by giving the appearance of acting like a good citizen?

Bottom line: Representation by your own lawyer is the only way you can be assured of fair compensation. Hospitals and physicians do not give you something they could not already be liable to pay.