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Two Words Can Soothe Injured Patients And Avoid Malpractice Suits: I’m Sorry

Medical LawDoing The Right Thing

The country’s first disclosure program began 30 years ago with a doctor’s desire to do the right thing.

Pulmonologist Steve Kraman, newly named as chief of staff for what is now the Lexington Veterans Affairs Medical Center in Kentucky, said he faced a problem in 1987: how to handle the death of a middle-aged woman caused by an “undeniable error,” a massive overdose of potassium.

“If we had said nothing, [the family] never would have known a thing,” said Kraman, who was also the hospital’s risk manager. “We never would have gotten sued. But I just didn’t feel that was right.” So he suggested to the hospital’s lawyer that they come clean to the patient’s two adult daughters, from whom she was estranged.

“I sat down and told them exactly what happened, that we were responsible for it, that they should hire a lawyer and we were going to negotiate a payment,” he recalled. Two months later, the family was paid $250,000.

From then on, Kraman said, all cases involving errors were handled similarly. “We paid out for things that nobody could have sued for in their wildest dreams,” said Kraman, who is now a professor at the University of Kentucky. Some patients declined the cash, he said, because they feared it would “ruin their relationship with the doctor.” Kraman said he refused to pay a dime in cases where no injury could be proved. “That just alienates doctors and nurses who feel like you’re throwing them under the bus.”

Kraman said he had several advantages: Doctors were employed and insured by the VA system. Payments, which averaged $16,000, were made from the U.S. Treasury, not the hospital coffers. And the program had the support of the hospital’s director and lawyer as well as the U.S. attorney for Kentucky.

“This has to be done from the top down” or it won’t work, Kraman said. “The message has to be ‘This is how we do business.’”

When Boothman arrived at the University of Michigan in 2001 — after two decades defending doctors, including an orthopedic surgeon who had been sued 21 times — he decided to try a similar approach. That included encouraging staff to report errors and bad outcomes; reports jumped from 2,400 a year to more than 34,000.

“You have to normalize honesty,” Boothman said, “to create a culture of continuous improvement.” Applying the lessons gleaned from those errors, he said, has helped make care safer.

“Litigating a case for three years and telling everybody, ‘Don’t talk about it and don’t change anything,’ is immoral and counterproductive,” he added. “I don’t serve my organization well by defending care we shouldn’t be defending.”

“Today we’re often at the bedside as soon as things happen,” he said. Patients and their families are interviewed as part of the hospital’s investigation of the facts, something that does not happen in traditional litigation.

Like Kraman, Boothman said he worries that some hospitals are using disclosure to cherry-pick small or unwinnable cases, not as a standard approach.

A Test Case

Orthopedic surgeon P. Justin Tortolani remembers with sickening clarity the moment he realized that a device he was installing had gone too far, penetrating Jack Gentry’s spine. The 60-year-old retired police officer, who once had hiked the entire Appalachian Trail, was instantly paralyzed from the neck down.

“You can’t really believe it’s happening,” said Tortolani, Union Memorial’s director of spine surgery. Summoning his years of training, the surgeon formulated a plan and steeled himself to tell Teresa Gentry what had happened. It was the first of many conversations about the accident that he would have with the family.

“We didn’t want to go through litigation, we didn’t need to go through litigation,” said Larry Smith, MedStar’s vice president for risk management. MedStar uses CANDOR in about a dozen cases with substantial damages annually.

MedStar executives “told me what had happened, why it happened, that it was directly or indirectly their fault and that whatever I needed I should ask for,” Gentry recalled. MedStar paid for five months of inpatient rehab — Gentry’s insurance would have covered only two weeks — modifications to the couple’s home, a $45,000 wheelchair and a new wheelchair-accessible van. It provided a case manager, a home-care nurse and $15,000 for incidental medical expenses.

“Because of the nature of Jack’s injury, we would have had to mortgage everything to pay for his care” otherwise, Teresa Gentry said.

Early on, Gentry said, his older brother, a Baltimore malpractice lawyer, expressed bafflement at MedStar’s approach. “He said as long as we were getting what we needed, to just go with it,” Gentry recalled.

At the end of two years, the case was settled with a confidential payment negotiated by lawyers for the couple, MedStar and the device manufacturer.

“I felt like it would take care of Jack for the rest of his life,” said Teresa Gentry, adding that the couple had been prepared to file a lawsuit if an agreement could not be reached. “Did I get enough to pay for everybody’s pain and suffering and trauma? No.”

“I was very skeptical in the beginning of this whole process,” she recalled, but she said she believes it has worked well, as does her husband.

Tortolani said he feels “remorse, guilt and sorrow for Jack and his family. This shakes you to your core,” he said. MedStar officials have been “unbelievably supportive,” Tortolani said, and he remains deeply grateful to the Gentrys. “My relationship with Jack has never been stronger.”

Donna Helen Crisp says she thinks she would have been less traumatized had the North Carolina hospital and her surgeon not stonewalled her. “I would have been deeply depressed that I had such a bad experience, but I could have moved on with my life,” said Crisp, who has written a book about her experience entitled “Anatomy of Medical Errors: the Patient in Room 2.” Being denied the truth left her with “no way to put it into perspective.”

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Kaiser Health News, a nonprofit health newsroom whose stories appear in news outlets nationwide, is an editorially independent part of the Kaiser Family Foundation.

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