Disclosure & Apology 101: A crash course in alternatives to med mal litigation

Medical malpractice litigation is intended to deter wrongdoing by healthcare providers, determine who has been injured by medical error and who has not, and provide fair compensation to the injured. However, it accomplishes these purposes too imperfectly, and it is notoriously costly and inefficient. 

Post-adverse event disclosure and apology is a policy that is designed to address what the tort system fails to accomplish.  Consider this a crash course in litigation versus disclosure and apology:

1. The tort system is broken. Medical malpractice litigation is not very good at achieving its goals of fair compensation for patients who are injured by medical error or deterring future malpractice. 
2. Ineffective communication encourages lawsuits. Research has shown that the factor that puts physicians at the most risk of being sued is not the quality of medical care or actual negligence, but ineffective communication with patients and their families, who will often sue to obtain “the truth”  if they feel the hospital and doctors are being evasive and they are being denied information.  
3. Mediation is affordable, efficient and supportive. Mediation can be paired with a disclosure and apology program. Mediation helps the patient and defendants achieve a fair financial outcome much faster and much less expensively than litigation, while providing an emotionally supportive element that is missing in litigation.
4. Disclosure improves health care. The model of disclosure, apology and early offer of fair compensation, integrated into a system that encourages and makes use of reporting of errors, near misses, etc., can help hospitals and physicians become better healthcare providers and more quickly identify and address patient safety problems that are caused by hospital systems, rather than by individual doctors. 
5. Hospitals still practice a “culture of silence.” While many hospitals officially have disclosure and apology policies, fear of litigation continues to inhibit full and effective implementation of these policies. Speak with your colleagues, attendings, and Risk Management Officer for more information regarding your own hospital’s system for handling medical error.