I recently read a post from Jan Gurley, MD on here on KevinMD.com.
Her opinion is that medical malpractice lawsuits are a “crap-shoot”; she notes that “malpractice lawsuits fail when it comes to medical errors-in both directions. People who’ve suffered from errors both don’t sue, and lose suits, in the same percentages that people who sued have no suffered from errors.”
Assuming that information is correct for purposes of this post, I ask that all readers consider shifting (or expanding) the conversation from this traditional one: 90% of cases that go to trial end in defense verdicts and 67% of cases were dropped, dismissed, or withdrawn (according to one survey). I propose shifting the conversation upstream from this analysis to look at existing patient-physician relationships in which patient and physician are on the same side in a trusting, respectful relationship.
Then, something goes wrong, an error perhaps, perhaps not. Some concern about a procedure/process arises, the patient’s health further deteriorates, or the patient dies. The physician acts quickly, meeting with the patient or family, explains the situation, informs the patient what occurred, accepts responsibility and apologizes, if appropriate, listens to the patient’s questions and experience of the healthcare system, and uses that information expeditiously to improve patient safety. If the physician does not believe there was error, s/he explains that what occurred is a common side effect, was predictable and explained to the patient in the informed patient choice process, or was not an error for other reasons.
If this conversation takes place, along with an offer of compensation, if appropriate, there is, very likely, no need for litigation, an adversarial process that pits physician against patient and forever transforms (and likely ends) a trusting, caring relationship. Trained attorneys can play a supportive role, counseling and advising the parties through this nonadversarial process.
The various studies/surveys that address who gets sued, what specialties they belong to, the end results of litigation, and/or whether cases are “frivolous,” never seem to address these upstream issues. When this continuing conversation between patient and physician occurs after there may have been medical error, it is not about blame, punishment, or punitive damages (almost unheard of in a med mal case, since intent must be proved and a less than miniscule number of physicians intend to harm their patients). Instead, it is about open communication, whether error was involved or not, and commitment to the patient-physician relationship. Before we get to statistics about cases dropped, can we ask: Was there a respectful process in place, such that patient-physician trust can be maintained and the patients understand what happened in order to make continuing healthcare decisions for themselves?
I don’t believe that anyone, whether patient, physician, or attorney, gets up in the morning and thinks: “I’m going to make some money today at someone else’s expense”. Rather, I imagine we all wake up, thinking: “I’m going to be responsible for my actions today and treat everyone I meet with dignity and respect.”
Kathleen Clark is an attorney who can be reached at Servant Lawyership.
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