Gabriel H. Teninbaum
The state’s new medical apology program is about money, not regret
By Gabriel H. Teninbaum
The Massachusetts Medical Society and seven local hospitals recently announced a plan to disclose medical errors to patients, apologize, and offer compensation. They tout it as being humane, fair, and designed to help injured people. There is reason, though, to question who it really serves.
Toward the back of a 25-page policy paper addressing the initiative, called “A Roadmap for Removing Barriers to Disclosure, Apology and Offer in Massachusetts,’’ the authors admit that they also intend to pursue “a formal strategy to advance legislative changes” that includes “additional tort reforms independent [of the apology] itself.” In other words, doing the right thing for patients is not, in their view, an end to itself. Instead, it’s another foothold for larger plans to limit access to compensation for patients harmed by malpractice.
That the coalition is publicly mum on its broader agenda is no mistake. The road map determined that, to gain acceptance, it must “emphasize that the motive . . . is to support patients and provide safer care, not save money.” Yet, when the designers of the program were asked by researchers what was appealing to them about it, only 37 percent said because it “serves patients’ needs better.” By contrast, 74 percent said it was appealing because it would “reduce legal costs/risk.” Put differently, it’s about money, not patients; except when the press is asking. Then, it’s about patients, not money.
One might ask, why would they use apology as a tort reform tool? From studies, it is clear that a properly executed apology can create an emotional connection with an injured patient that makes the patient less likely to ask for compensation. A 2010 study found that at one facility, the medical apology program resulted in fewer injured patients making claims, and those who did accepted a fraction of the amount as those hurt before the program was instituted. For minor injuries, no real harm is done; but the outcome can be terrible for seriously injured patients and their families if a patient accepts an apology in lieu of needed compensation. The costs for future medical bills caused by the malpractice, lost earnings, and other expenses then potentially fall not just on the injured person’s family, but also on taxpayers, who must pick up the public assistance tab shifted on to them by the insurer that avoided paying by use of apology.
It might all be more palatable if the patients were on equal ground with hospitals and insurers. Yet, apology programs rely on risk managers — experts in litigation whose role includes minimizing costs for their employers — to control the process. The degree of behind-the-scenes influence exerted by them can be staggering. For example, CRICO/RMF, the Cayman Islands-chartered company that insures doctors at Harvard-affiliated hospitals, refuses to allow its doctors to apologize to their own patients without first clearing it with a risk manager. This is true even when the patient’s injury occurred because the doctor committed one of the medical “wrongs” (e.g. operated on the wrong patient, wrong side, or wrong organ). Thus, not only do these programs have the potential to manipulate patients, they also interfere with the relationship between well-meaning doctors and their patients.
The group behind the Massachusetts medical apology project says it recognizes the importance of ensuring patient legal representation. What remains unclear is what it interprets this to mean. To do it the right way, injured patients should be encouraged to become educated on their rights and future needs. No patient should be allowed to settle a claim, or walk away following an apology, without being aware of the desirability of seeking legal advice and being given reasonable opportunity to do so. If the patient then decides to pass on compensation, the decision should be respected. However, no clear-headed decision can be made given the power disparities between risk management departments and patients.
A good apology should be simple: admit the error to the harmed person, ask for forgiveness, and be willing to accept the consequences. The first two parts are manageable, but convincing the medical-insurance industry in Massachusetts to accept the consequences when its money is on the line will be the trick.
Gabriel H. Teninbaum is an associate professor of legal writing at Suffolk University Law School. He is the author of “How Medical Apology Programs Harm Patients,” which was recently published in the Chapman Law Review. He can be reached at email@example.com