When Medical Malpractice Happens, the Best Answer Remains Admitting Fault, Apologizing and Paying th

Business Insurance has a new article by Louise Kertesz on the best strategy for dealing with medical malpractice – admitting fault, paying the claim and moving forward. The topic truly matters because malpractice in general continues at alarming rates as described by the New England Journal of Medicine, and specific examples are sometimes horrific, as illustrated by this recent example. Meanwhile, various "tort reformers" continue to posture – incorrectly – that the problem is caused by "trial lawyers" ginning up claims. While certainly there are some bogus suits every year, I’ve yet to find any empiric evidence supporting the claims of tort reformer claims. Instead, one finds that medical malpractice is happening, and hospitals and insurers are failing to stop it from happening. When conservative Fred Thompson was seeking the Republican nomination for President of the United States, he made a point of acknowledging that damages caps are bad policy, and an arrogant and unfair form of government intervention, which conservatives supposedly abhor.

The advantages of honesty and apologies are in a way old news – the point in general is made here by a German study of corporate response to its own mistakes, as highlighted here by Conglomerate. As to medical malpractice in particular, the University of Michigan proved the point in a 2009 article reporting its experience. See A Better Approach to Medical Malpractice Claims? The University of Michigan Experience, by Richard C. Boothman, Amy C. Blackwell, Darrell A. Campbell, Jr., Elaine Commiskey, and Susan Anderson. The article is published online, and collects a wide range of research on the subject. The abstract and cite are as follows:

ABSTRACT: The root causes of medical malpractice claims are deeper and closer to home than most in the medical community care to admit. The University of Michigan Health System’s experience suggests that a response by the medical community more directly aimed at what drives patients to call

lawyers would more effectively reduce claims, without compromising meritorious defenses. More importantly, honest assessments of medical care give rise to clinical improvements that reduce patient injuries. Using a true case example, this article compares the traditional approach to claims with what is being done at the University of Michigan. The case example illustrates how an honest, principle-driven approach to claims is better for all those involved—the patient, the healthcare providers, the institution, future patients, and even the lawyers.

CITATION: Richard C. Boothman, Amy C. Blackwell, Darrell A. Campbell, Jr., Elaine

Commiskey, and Susan Anderson, A Better Approach to Medical Malpractice Claims? The University of Michigan Experience, J. Health & Life Sci. L., january 2009, at 125. © 2009 American

Health Lawyers Association, www.healthlawyers.org/bookstore. All rights reserved.

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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