Good Communication Can Reduce Lawsuits
by James Otto Heiting
Premiums charged by insurers are outrageous! Profit-driven underwriting for professional negligence makes all of us, except the insurance companies, suffer.
Although virtually every state has enacted some sort of “medical liability reform” to keep down premiums and financial risk to physicians and medical providers, these reforms, while onerous to the injured parties in many cases, have been a dismal failure in reaching the goals intended.
Picture you and your spouse, having had an uneventful pregnancy and carrying your healthy baby to term, reaching the hospital and placing yourselves in the care of the medical personnel there. Through a series of events that would be considered negligent, offensive, and even egregious, your baby does not receive the care that would be appropriate or required under the circumstances; and, as a result, your child suffers severe brain damage. This is your first child, and you may be limited, due to health considerations, from having any others.
You and your spouse deeply love your child, despite the fact that she cannot communicate, she cannot hear, and she is blind. She begins to suffer a series of maladies and requires constant attention. You take her home whenever you can and whenever her condition permits; but it seems that she has to go back to the hospital more and more often, and her condition is getting more grave.
Eventually, you succumb to the recommendations of the medical staff at the hospital, and you “let her go”. She slips away with her little dress on and the little bow in her hair, never to return, leaving behind an unbearable emptiness. Your loss is indescribable.
According to California law, the maximum you could receive in a damages award would be $250,000 for the loss of your child. Because you had some sort of insurance pay the medical bills (even public tax payer generated benefit), there is no entitlement to recover anything for bills that were not out-of-pocket. (The wrongdoer, even through liability insurance, is not responsible to pay back even the medical insurance company.) There is a good chance that you would not be able to recover for the weeks and months that you spent caring for your little girl, for the time that you had to take off work, for the inability to attend to your family, your other financial interests, your business. Obviously, the recovery set by these limits is woefully inadequate.
Even so, even with these limits on damages, insurance companies continue to sharply increase medical liability insurance pricing. I do not blame the injured parties or their attorneys. I do not blame judges or juries. It may be that the costs of defense (the defense lawyers and experts) may be out of control and should be limited. Certainly professional liability insurance carrier profits should be reviewed.
Irrespective of the cause of the increases in premiums, and irrespective of the inadequacy of damages awards available (at least from my perspective), the question arises as to whether there is an approach that would, at least in part, satisfy both sides. I think there is such an approach, but it is unlikely that a change in climate, trust and focus on all sides will occur without a change in practices, customs and time.
In September, President Obama announced a government backed pilot program to find alternative ways to approach the tort system for medical liability cases. He wanted to launch a program meant to cut down on expensive treatment through physicians having to practice “defensive medicine” to “avoid lawsuits”.
I, personally, feel that practicing medicine to avoid lawsuits probably equates to putting patient safety first, one of the other announced goals and requirements of the pilot program. Additional goals included working to reduce preventable injuries, fostering better communications between doctors and patients, insuring that patients are fairly and quickly compensated for medical injuries, reducing the incidence of frivolous lawsuits, and reducing medical liability insurance premiums. These are all laudable goals and may actually work.
Putting patient safety first and working to reduce preventable injuries are obvious and important components. We must remember that the medical profession is a service profession. If you will remember that, and you will keep that as a central component of your practice, it is much less likely that you will suffer claims, especially borderline claims.
Fostering better communication between doctors and patients is absolutely essential. I cannot tell you how many clients I see that come to me because of poor communication, or even refusal to communicate. Patients deserve communication and to be treated with respect and candor. Playing “hide the ball” and acting “holier than thou” will drive your patients to my doorstep.
Ensuring that patients are fairly and quickly compensated for medical injuries is a very exciting part of President Obama’s pilot program. It is exciting because it will hold down the expenses and high cost of defending cases; it will create an atmosphere of cooperation rather than antagonism; and it will serve to reduce medical liability insurance costs.
One of the ways to ensure fair and quick compensation for medical injuries is to encourage full disclosure and communication regarding such injuries. This is a difficult concept for many doctors, but it is effective in changing the mindset of plaintiffs and claimants to one of cooperation and gratitude for honesty and proper intentions. Full disclosure on both sides (recently getting play as “collaborative law” ) will result in much quicker (and more modest) resolution, less anxiety on both sides, less litigation, and probably less frivolous lawsuits.
I was consulted recently by a man who lost his wife due to inattention of nursing staff in an ICU. The medical negligence seemed obvious. The man asked me to represent him against the entity; but he also indicated that the risk manager of the hospital had contacted him and had indicated that the staff had made an error that resulted in the injury to his wife. The thing that drove the man to my office was that he felt insulted that the risk manager went on, in an attempt to minimize staff’s role, by telling him how sick his wife was, anyway, and that she would not have lasted more than a couple of years, even without the untoward events. That woman was everything to that man. She was his world. The risk manager, whether intentionally or otherwise, was diminishing their relationship and her worth. This was a mistake on his part that could and should have been avoided.
He was doing some things very well, though. The risk manager invited the widower to discuss compensation for his loss. (I felt that it was in the best interests of my potential client that I could advise him simply as to how I thought damages should be calculated and how he should approach risk management.) The two met several times and discussed the damages, the loss, and how sorry the risk manager was for this man’s loss. To make a long story short, my client settled the case with the risk manager within a few weeks. Although he settled for about sixty-five percent (65%) of what I saw as the value of the case for settlement purposes, he was able to get prompt resolution and pay a very minimal amount in attorney fees. He saved himself from a potential of years of litigation and probably would have received approximately the same net amount. At the same time, by being open and honest with the patient’s spouse, the risk manager saved the hospital the entire cost of litigation, including an extra $200,000 or so in damages, probably saving over $400,000 over a two or three year period of prospective litigation. By laying all the cards on the table, the hospital saved a lot of money, the risk manager was satisfied, the widower was satisfied to the extent possible, and I was happy that I could provide a service to my client that resulted in a real benefit to him.
In essence, then, my advice to reduce risk is to remember that service is the central component of healthcare, that respect for patients and their safety must be of primary importance; and, in order to foster good relations (and many times avoid claims even where claims are warranted), good and caring communication is the key.
My perspective: I respect, admire and root for health care professionals who care for and give their all for their patients; and I get angered by, and feel disrespected by, and want to teach a lesson to, those healthcare professionals who do not care and/or who want to hide behind arrogance and pomposity.