Two small words may help avoid the sting of a malpractice trial

Some patients hold the position that an apology would soothe many wounds caused by physician mistakes. In most states, 36 to be exact, a medical professional’s apology cannot be thrown back at in his face in court. Patient advocates say that those who have been injured but who have received an apology are more likely to negotiate settlements rather than take a case to a trial that could end up with a large jury award. In a country where malpractice payouts equaled almost $4 billion in 2014, such a tactic may be extremely useful for doctors and health systems.

Admission of guilt or admission of kindness?

Some physicians and hospitals used to believe that the less said about medical errors, the better. Even in the beginning of 2010, a shift appeared to be taking place. Doctors realized that explanations and apologies made patients feel heard and important. The University of Michigan Health System (UMHS) began offering apologies and providing the opportunities for discussion when clinical problems arose. UMHS even believes that confronting mistakes and errors in this manner allows an opportunity to learn, which helps prevent them from happening again.

UMHS reported that they shifted from a system of litigation to a claims management model that starts with legal assessment, investigation, analysis, and patient engagement. Sometimes these cases still lead to litigation, but they may lead straight to a settlement or defer a claim altogether. UMHS stated that its number of claims and lawsuits has dropped dramatically since 2001, and that the average legal cost per case has dropped by over half since 1997.

Legal protections in most states

“I’m sorry laws,” more formally known as Medical Professional Apologies Statutes, protect parties from having their condolences or even apologies used against them in court. Many states have a citation for general sympathetic gestures, including apologies, although Illinois’ was declared unconstitutional by the state’s Supreme Court. Six states even have a protection statute specifically related to sympathy and apologies offered in relation to an accident: California, Florida, Massachusetts, Tennessee, Texas, and Washington.

Do patients want to sue?

Leilani Schweitzer, a mother whose one-year-old son died due to a nurse’s mistake, spoke to CNN Health about how she actually did not want to sue. Schweitzer accompanied her son from a hospital in Nevada to one of the best children’s hospital’s in the country, at Stanford, and a sympathetic nurse turned off the loud alarms connected to the patient’s heart to allow Schweitzer to rest. Although the nurse believed that she only turned off the alarms in the patient’s room, she unwittingly turned them off on her pager and at the nurse’s station. The boy died when no alarms alerted medical personnel to his stopped heart.

Schweitzer was offered a full apology, explanation, and unsurprisingly, a financial settlement. Stanford went a step farther, however, and involved Schweitzer in its steps to prevent a recurrence. Years later she was hired as a consultant to reach out to patients after similar issues, and she eventually landed as the assistant VP of communication and resolution–and gave a TEDx talk on transparency, compassion, and truth in medical errors. She emphasized that harmed patients and their loved ones generally do not want to sue, but retain lawyers after they feel that no one is listening or giving them a straight story.

In contrast, Deborah Craven filed a complaint after she believed surgeons tried to hide their mistake: removing the wrong body part. A precancerous lesion was found on her eighth rib, but the surgeons removed part of the seventh instead. When Craven complained of pain after surgery, her doctor took an x-ray and discovered the issue. Another doctor showed up five minutes later and changed the story, telling Craven and her husband that they simply failed to remove enough of the correct rib. Although Yale New Haven Hospital claims that it offered an apology, Craven’s lawyer disagreed. Her lawyer also points out that she did not want to sue immediately, but approached the hospital about a resolution. The hospital decided the case was not significant enough.

It seems that an apology and an explanation is a large portion of what patients feel that they are owed when they file a lawsuit seeking a financial settlement. As hospitals shift from “deny and defend” mode, they may find that the extra face time with patients results in less time, and money, in court.

Highlight on South Dakota: ‘Three strikes, you’re out’ drug testing for welfare proposed

South Dakota State Senator, Phil Jensen (R-Rapid City) has introduced  legislation (S.B. 153) that would require the state’s Department of Social Services (Department) to develop and implement a drug testing program that randomly tests 2 percent of adults applying for cash benefits under the state’s temporary assistance for needy families (TANF) program at the time of their application.

A previous bill, H.B. 1076, which failed in the South Dakota House Human Services Committee in a 9-4 vote at the end of January 2016, was introduced by state Rep. Lynne DiSanto (R-Rapid City), and would have required all welfare applicants to submit to, and pay for, a test for illicit drugs. Under H.B. 1076, if the applicant failed the test on the first attempt, benefits from both the TANF program and the state’s supplemental nutrition assistance program (SNAP) would have been withdrawn for a period of one year.

Under the TANF drug testing program (S.B. 153), an applicant who is found to have tested positive for the use of a controlled substance that was not prescribed for the applicant by a health care provider must be tested again within 45 days. If the applicant tests positive a second time, the Department must give the applicant information on available drug treatment programs, and the applicant must be tested again within 45 days. If the applicant tests positive a third time, the applicant then becomes ineligible to receive TANF benefits for a period of one year. The applicant will also be required to pay the cost of each test where the applicant tests positive through a reduction in benefits.

According to the Rapid City Journal, Rep. DiSanto’s proposed bill was not only criticized by the American Civil Liberties Union, but by Republican Governor Dennis Daugaard, who described H.B. 1097 as “somewhat insulting.”

In a letter to the Journal, Senator Jensen said that his “kinder and gentler” version of H.B. 1076 “protects children from drug usage in the home and makes sure that benefits actually reach them.” The Journal reported, however, that State Rep. Karen Soli (D-Sioux Falls) opposes S.B. 153 as much as she opposed H.B. 1097, calling both bills examples of “poor-shaming.”

S.B. 153 has been referred to the Senate Health and Human Services Committee for further action.

Highlight on Tennessee: Malpractice alternative under consideration, not all agree on potential effects

Pending Tennessee legislation on medical malpractice could potentially drastically impact the state’s health care costs, some believe. Although action on HB0546/SB0507 was deferred last spring, the Patient Compensation System (PCS) is on the legislature’s agenda as the 109th Tennessee General Assembly is underway.


 The high number of malpractice suits, resulting in high malpractice insurance costs, has long been a concern for the medical community. Even the Government Accountability Office (GAO) got involved in 2003, presenting a report to Congress indicating that insurance premium rates had risen primarily due to claim losses. These losses, combined with investment income decreases and low premium prices offered during times of intense competition, resulted in some insurers leaving the market or becoming insolvent. This resulted in fewer options and less competition.  Nearly a decade later, in 2012, $3.6 billion was paid out in 12,142 medical malpractice claims, with 93 percent coming from settlements.

Defensive medicine

In an attempt to avoid malpractice suits altogether, doctors practice what is known as defensive medicine. Even if they are comfortable with a diagnosis, they may order additional tests to cover their bases, just in case. Surveys have revealed that as many as 75 percent of doctors order these extra unnecessary tests, which could add up to about $650 billion each year, or one in four health care dollars. This expensive idea has at least some merit: Florida data from 2000 to 2009 showed that when hospitals billed more for a patient’s case, the doctor was less likely to be sued. Even when tort reform resulted in caps on damages or early offers of compensation prior to litigation, doctors did not feel comfortable abandoning defensive medicine practices. The PCS system, however, prevents doctors from being sued altogether. In theory, it could completely eliminate the practice of defensive medicine.

Patient Compensation System

The PCS creates a no-fault administrative system comprised of medical experts that review claims. This alternate system would ease the burden on the courts, and would be funded through liability premiums. Evidence shows that medical malpractice attorneys are reluctant to take cases that are likely to have a low payout, but the administrative system would allow those who have been less seriously harmed to recover for their injuries. The Patients for Fair Compensation organization has been fighting for this type of reform, emphasizing the lack of fairness in the current system and its contribution to rising health care costs through the practice of defensive medicine. The organization argues for the likelihood of cost saving through eliminating costs of litigation and the increased predictability of patient awards.

Tennessee bill

In 2015, the bill’s sponsors, Representative Glen Casada and Senator Jack Johnson attempted to garner support for the PCS through a Tennessean article, emphasizing how much of the out-of-pocket burden consumers are bearing due to soaring health costs. They argued that the current tort system is broken, and that Tennessee residents spend $13 billion annually on defensive medicine with employers coughing up $4.6 billion of the amount. They projected that the PCS would save employers between $25 and $30 billion over ten years. Recently, another Tennessean article written by a hospital administrator of 40 years brought up the topic again. He stated that hospital administrators are not able to prevent doctors from practicing defensive medicine, and that the majority of physicians he has known have been sued and many, frivolously. Yet the Tennessee Medical Association  (TMA) and the Steve Volunteer Mutual Insurance Company (SVIMC) strongly oppose the PCS model, believing that costs would actually dramatically increase. TMA and SVIMC said that the current system is actually working and the PCS is “an untested system with significant flaws.”

Johns Hopkins ready to begin organ transplants between HIV-positive donors, recipients

The slow approval process for green-lighting HIV-positive organ transplants has finally reached its end for Johns Hopkins University. The institution is prepared to be the first in the U.S. to perform an HIV-positive kidney transplant, and the first ever to do such a liver transplant.

HOPE for patients

The whole process started with the HIV Organ Policy Equity Act (HOPE Act) (P.L. 113-51), signed into law in 2013. This law directed HHS and the Organ Procurement and Transplantation Network (OPTN) to establish standards involving HIV-positive organ transplants. Prior to this act, the use of HIV-positive organs in transplants was a federal crime.

The HOPE Act was created after South Africa began pursuing HIV-positive to HIV-positive organ donation and experienced success. A 2012 article in the South African Medical Journal emphasized that emerging economies were not able to provide dialysis to all patients who needed it, and noted that the availability of deceased donor organs at a major South African hospital had decreased by half over the most previous decade. The authors, one a transplant surgeon and the other a specialist in HIV medicine, found that HIV-positive donor kidney transplants for HIV-infected recipients was a viable alternative to dialysis or seeking organs from donors who were not HIV-positive.

The authors responded to concerns that donor kidneys could infect the patients with a slightly different strain of the virus by noting that highly active antiretroviral therapy (HAART) is effective at suppressing all clades of HIV. They agreed that drug-resistance rates would inevitably increase, and that there was a concern about transmission of a drug-resistant virus. However, they noted that they would eventually use donor virus genotyping in an effort to suppress resistant viruses.

National Institutes of Health criteria

Following the passage of the HOPE Act, HHS published safeguards and criteria developed by the National institutes of Health (NIH) (Notice80 FR 73785, November 25, 2015). The criteria established that these transplants must be done under institutional review board (IRB)-approved protocol, and must comply with regulations governing human research. The hospital transplant team must have HIV program expertise, experience with HIV-negative to HIV-positive organ transplants, and standard operating procedures and training for handling HIV-positive patients, organs, and tissues. All HIV-positive deceased donors must show no evidence of invasive opportunistic complications of HIV infection, and a pre-implant donor organ biopsy must be completed. If an HIV-positive living donor wishes to participate, the HIV infection must be well-controlled (as further defined in the criteria). The criteria also specifies certain aspects for the required health status for all donors, as well as wait list candidates.

Despite commenter concerns that living donors infected with HIV would be at a higher risk for renal and/or liver disease, HHS noted that the decision should be left up to the living donor/recipient pair following a “rigorous, transparent education and informed consent process.” HHS also identified various questions that could be addressed through future research, such as HIV superinfection, incidence of opportunistic infections, reasons for increased rates of kidney rejection, and outcomes of living donors.

Johns Hopkins

Johns Hopkins is ready to begin finding answers to these questions. An associate professor of surgery at the Johns Hopkins School of Medicine estimated that about 500-600 HIV-positive organ donors could save over 1,000 lives each year. The impact of the implementation of the HOPE Act is significant for many HIV-positive patients, as increased organ availability decreases the likelihood that they will die while on the waiting list or become too sick to survive a transplant. CNN reports that 121,000 patients were on a transplant list in 2014, and only one in four received a needed organ.