When the Lexington, Kentucky VA Medical Center pioneered the “disclosure and offer” risk management strategy in 1987, it sought to make patients whole without the need to litigate.  As part of this process, before meeting with injured patients, VA risk managers contacted the patient and recommended they seek their own legal counsel who they were welcome to bring to the meeting.  The VA viewed this as a necessary step for the program to be seen as legitimate.

There is another reason why advising patients to seek their own legal counsel is necessary to disclosure and offer programs: to promote fundamental fairness.  For doctors and medical facilities, advice about the legal fallout from a bad medical result comes from risk managers.  Risk managers are experts in litigation, with specialized knowledge of whether a jury is likely to find an injury was caused by negligence, and, if so, the damages a jury would likely award the patient.

For patients, though, there is typically no comparable expert advisor.  Instead, in many current programs, unrepresented patients are asked to rely on the hospital’s risk manager, whose interests are in conflict with the patient’s.

That is an unfair position to put the patient (or risk manager, for that matter) in.  Risk managers are, all after, obligated to use best efforts to keep costs down.  They do better at their job if the patient gets less.

Without independent legal advice, patients have no way to know if their injury is legally compensable, nor how much money they will need to pick up the pieces for themselves and their families.  Alternatively, some patients who may expect an unreasonably large court judgment, may benefit from their own attorney’s advice about what constitutes a fair offer.

Facilities with disclosure programs should not fear advising injured patients to seek legal counsel.  If the patient hires an attorney who is unrealistic or inappropriately combative, the hospital’s risk managers can simply say no to his demands.

This is not to say all patients will want to consult an attorney or insist on money damages.  If a patient does not seek counsel, or does not want compensation – even if entitled to it by law – that’s an acceptable result too.  Risk managers should simply give that patient a reasonable cooling off period before a discussion between the patient and risk manager takes place.

Telling patients to seek counsel should also not be a windfall for plaintiffs’ lawyers.  The attorneys, themselves, are bound by their professional code to significantly reduce fees if claims are resolved as a result of the disclosure & offer process.

It is vital to recognize that conversations between doctor and patient that follow the aftermath of a medical error are not just a conversation to promote physical and emotional healing for those involved.  They also have legal implications and, in a conversation that influences legal rights and remedies, both doctor and patient should be encouraged to have an advocate in their corner.

Steve S. Kraman is Professor, Division of Pulmonary, Critical Care and Sleep Medicine, Department of Internal Medicine, University of Kentucky.  Gabriel Teninbaum is Associate Professor of Legal Writing, Suffolk University Law School.