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Mark Bello
Mark Bello
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“Is The Cover Up Worse Than The Crime?”

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When you accidentally hurt someone, saying “I’m sorry” goes a long way to beginning to repair a damaged relationship or righting a wrong. But in the medical field apologizing for a mistake is yet to become standard practice. Medical malpractice lawsuits have created a system of secrecy in which the “acknowledge and apologize” approach is still the exception, not the rule. While it is mandatory for hospitals to acknowledge medical errors, it isn’t always obvious to what degree disclosure policies are followed, and such disclosures are often not accompanied by apologies.

A medical malpractice lawsuit was filed by a Connecticut woman, after surgeons at Yale New Haven Hospital removed the wrong rib. Deborah Craven is suing; her attorney, Joel Faxon, says it is not because of the error.

According to the suit, Craven was scheduled to have her eighth rib removed due to a lesion that was causing intense pain. The rib was marked by radiologists, using metallic coils and a marking dye, to avoid any possible confusion. Despite these precautions, a surgeon-in-training removed the wrong rib; he then tried to cover up his mistake. Craven said she and her husband were told the truth by one doctor, yet the doctor who performed the surgery said that a second surgery was necessary because they were unable to remove enough of the correct rib.

Once Craven was released from the hospital, she approached Yale to “resolve the matter informally.” A Yale legal representative told her ‘the case was not significant enough’ for their involvement.” Subsequently, she learned that Yale had publicly admitted the error in a report it made to the state health department. CNN shared this from the report:

“Yale-New Haven Hospital and Yale Medical Group are committed to providing the safest and highest quality of care possible. However, even in the best organizations medical errors may occur. When they do, our goal is to acknowledge them, learn from them, and ensure that we minimize any chance that they ever occur again. With respect to the case of Ms. Craven, we recognized that an error was made, we informed and apologized to the patient, and we immediately reported it to the Connecticut Department of Public Health.”

The Yale report also mentioned an “outage of the radiographic imaging” and pledges to “institute a method of communication that will provide timely notification of system outages including, but not limited to, Picture Archiving and Communication System (PACS) and Epic.” PACS is a system for storing and retrieving medical images. Epic is the electronic medical records system used at Yale and many other hospitals.

Learning of this news draws more questions such as – Did an equipment shutdown contribute to the error? Did the doctors know about it? If so, why did they proceed with the surgery?

Mr. Faxon said Yale could have avoided a lawsuit if it had done two things: made a full apology to Craven, including an honest explanation of how the error occurred, and abided by Craven’s request that the doctor involved in the alleged cover-up not be allowed in the operating room during the second surgery. Neither happened; now the hospital may not only be faced with a financial fallout, but a public relations one as well.

Medical professionals are often discouraged from confronting patients and their families when something goes wrong, worried their statements may be used against them in litigation. Studies have shown, however, that lawsuits are more about communication than monetary compensation. It has been shown that an apology and explanation not only decreases the likelihood of a lawsuit, but those patients and family members are more likely to negotiate a settlement than file a lawsuit that could result in a large malpractice award from a jury. It also helps when a patient is assured that the doctor and hospital will take every measure to rectify the situation and make sure it doesn’t happen again.

The basic human desire to hear “I’m sorry” is behind a movement to encourage hospitals and doctors to move away from the traditional “deny and defend” approach, to “acknowledge and apologize.” This shift from a culture of silence isn’t easy, but cases that once would have disappeared into sealed courthouse files can be openly discussed, foster better communication between health care providers and patients, and become a learning opportunity for fellow peer and avenues for quality-improvement. To date, 36 states have enacted some form of an “I’m Sorry” law. The laws prohibit apologies from being admissible in malpractice court.

The SorryWorks! Coalition, founded by Doug Wojcieszak has been a supporter of the disclosure and apology cause as well as upfront compensation (when appropriate) after adverse medical events. The SorryWorks! Coalition believes in building strong relationships with patients and their families before an adverse event happens and saving those relationships with disclosure and apology when such an event happens. The coalition provides teaching and training tools to help healthcare and insurance organizations implement and develop successful disclosure programs. This sounds like the correct approach to me; it should prevent a substantial number of future lawsuits. What do you think?

Mark Bello is the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company.