Patients often pursue litigation simply to obtain information that has not been forthcoming. Research shows that the three things patients want most in the face of medical error are: information about what happened; a sincere apology; and measures to prevent the error from happening to someone else. Financial compensation is lower on the list. Patients generally seek attorneys out of anger rather than greed. When unanticipated adverse outcomes occur, error or not, doctors tend to distance themselves due to feelings of guilt and fear of malpractice litigation. This defensive response only fuels speculation that something went wrong otherwise information would not have been withheld.
On the other hand, doctors feel targeted individually and are strongly impacted by lawsuits against them – emotionally, financially and professionally. Among physicians that have been sued for malpractice, 97% experience physical or emotional reactions. Although actual rates of error are high, doctors still overestimate the rate of malpractice claims brought in response to those errors. As a result, doctors’ tolerance of uncertainty about medical outcomes is pushed to very low levels and they practice medicine more defensively. In reality, only 2-3% of patients injured by medical mistakes actually file lawsuits and only half of those who bring suit ever receive compensation.
On a national level, we are becoming increasingly aware of the frequency of medical errors. Better understanding as to where these errors are occurring is so desperately needed to improve our processes and system designs in health care as it becomes increasingly complex. Patient safety improvements depend on our ability to learn from errors and near misses, yet disclosures when they occur are far from the norm.
Why not consider another option, one that allows for medical disclosure and transparency through a safe, supportive and highly effective process that addresses both the individual patient and physician needs and the broader disclosure and patient safety goals? We need to resolve conflicts early, through a process that brings parties together face-to-face to work toward conflict resolution and restoring relationships. The process should be voluntary, leaving the court system available, and should enable communication, information-sharing, and closure among patients, practitioners and health care organizations in the face of adverse outcomes. Such an option would also decrease litigation costs and better meet the needs of the individuals involved and our healthcare system.
Jessica Scott is the Director of Healthcare ADR Innovation at Carolina Dispute Settlement Services where she administrates the IACT program.
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