Words can mean a lot when patients are injured or killed by medical malpractice. First came the phrase, “I’m sorry,” which I discussed just over one year ago in this post. Even the medical establishment has recognized the true value of an apology, as they have come to acknowledge that medical malpractice lawsuits are not fueled by greed, but by anger at the failure to even offer these words of comfort after lives have been derailed.
So let’s move on to the next logical phrase. What would happen if doctors began acknowledging fault after making mistakes, particularly mistakes that caused serious injury or death? Ohio physicians are pushing for a law that would allow them to own up to errors, but would prevent such admissions from being used in court. Proponents of such legislation say that it could defuse the anger and resentment of victims of malpractice, since often, what they value most is a full explanation of what happened to them. Therefore, acknowledging that a mistake was made could lessen lawsuit filings. On the other hand, opponents feel such a law would be unethical, as the admission cannot be used in court, and would present a distorted view of the evidence at trial.
At first glance, the proposed law seems a bit too favorable for doctors and hospitals. If such acknowledgments result in fewer medical malpractice lawsuits, that is not necessarily a bad thing–if, and only if,victims are compensated in alternative ways, such as quick settlements that start them on the road to recovery. Such admissions might also facilitate actual learning from mistakes, as more, and more open discussion would lead to less stigmatism of those who make them, making the sharing of lessons learned easier to do.
What do you think?
Patients who become victims of medical malpractice rarely receive an acknowledgement of the mistake, or an apology, according to a new study by Johns Hopkins University School of Medicine. Apparently, only 9% of the patients who participated in the study said that the medical provider/facility voluntarily disclosed the mistake. When harm was disclosed, it was often because the provider was forced to do so. And only 11% of patients reported ever receiving an apology.
Evading responsibility and running from accountability are not doing the medical profession much good. Instead, as studies like this one make the headlines again and again, consumer trust in doctors and hospitals is steadily eroding. Some of the more cynical care givers defend the burying of their errors by claiming that they will be sued if they are as forthcoming as they might like to be with their patients. Except that self-serving approach is also self deluding. Believe it or not, many, if not most victims of medical malpractice don’t need to be told that they have been victimized. They figure it out, either on their own, of after talking with friends and family members–some of whom may themselves work in the field of healthcare. And then they speak to a medical malpractice lawyer.
That this all-too-common scenario is so common is a shame. Timely notification to patients who have suffered medical error could save them from the ravages of unrealized error, infection or contamination, and stop, or at least lessen the resulting harm. Patients would likely not feel so angry, and inclined to sue, when they learn that their doctor did all he or she could, as soon as he or she could, to fix the mistake. Having listened to hundreds of patients who have been injured while receiving medical care, the injury itself is only part of the calculus when it comes to bringing a lawsuit. How they were treated afterward, and whether or not the mistake was acknowledged, are not only hugely significant–they can, and have made the difference between whether a claim is pursued, or not.
The moral here? Sometimes it’s actually a good idea to follow your altruistic impulses.
The NY Times editorial board has called for increased accountability and transparency in products liability cases–a call prompted by the recent revelations that General Motors, maker of faulty ignition switches that killed drivers, and Takata, maker of airbags with deadly defects, hid evidence of the defects as consumers continued be to injured and killed. The editorial has a more expansive view about such secrecy. “Whether the products are cars, airbags, tires, toys, cribs, food, drugs or other goods, new laws are needed to deter corporations from covering up safety defects and punish those individuals and companies that do.” What is the Times really saying here? When you read between the lines, the message is clear: tort reform is not only a bad idea–it’s deadly.
In this age of transparency, must the Times make a big push for instituting the Sunshine in Litigation Act, so that secret settlements concerning faulty ignition switches become a thing of the past? As the Times points out, when families of the injured and dead must stay silent, the public loses by missing out on learning of the dangers immediately, and regulators can’t learn from the problems. The Act would require that public safety issues receive consideration before court records are sealed. The Automaker Accountability Act would eliminate industry-spawned tricks like the $35 million dollar cap on GM’s civil fines from its fatally defective ignition switches. That amount is meant to cover all injuries and deaths. Pretty sweet deal, no? Maybe the Hide No Harm Act is a good and timely idea. This act was prompted by “evidence that high-level corporate officeres at GM did not act to inform regulators or warn the public of the defective switches even after they knew of the problem.” Such corporate officers should have to face not only large fines, but incarceration when they fail to make such basic disclosures. The Times ominously warns that “under current law, there is no general legal duty for companies or individual company officers to disclose safety dangers.”
Why the caps? Why the secrecy? Why the utter lack of accountability? Why the exalting of corporate profits over consumer safety? Why haven’t we progressed much beyond the good old days when Ford continued to let occupants of its Pinto become incinerated, despite its knowledge of the gas tank defect, because paying out some wrongful death settlements was cheaper than fixing the manufacturing process? The answer is tort reform–the endlessly-funded fountain of misinformation that tells the public that victims of corporate malfeasance, and especially their lawyers, are no more than opportunistic seekers of “jackpot justice” who file frivolous lawsuits that jack up insurance rates for every American. The Times never mentioned that term in its editorial. It didn’t have to.
This article, from Michael Hiltzik of the Los Angeles Times, provides helpful background information on the realities of tort “reform,” and discusses how a new study shows that the savings from so-called tort reform are nothing short of mythical.
So will the truth triumph? Or will Big Business continue to engage in amoral conduct that kills consumers without any fear of accountability? I’ll give you one guess.
UPDATE: What is said to be the first federal lawsuit against Takata has been filed based on the alleged excessive force with which one of its airbags deployed, according to the National Law Journal.
And, Honda has admitted failing to report more than 1,700 incidents of deaths and injuries caused by defects in its cars, including defective Takata airbags.
This afternoon (11/25/14), the Blog of Legal Times reports that a couple of senators are seeking Takata’s internal documents on its airbag defects, after testimony from a top executive left many unanswered questions.