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January 13, 2006

By Greedy Trial Lawyer

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Dear Greedy Trial Lawyer,

I appreciated your comments about Sorry Works, but, with all due respect, I don't think you have the whole picture.

Sorry Works! is not just about "sorry," it's also about fair, upfront compensation for victims and their families. Yes, Sorry Works! save money for healthcare organizations, but it also saves time, frustration, grief, and money for families, patients, and their attorneys.

Sorry Works! is also about eliminating all the non-meritorious med-mal cases that cost trial lawyers a fortune to prosecute and make the trial bar look bad (i.e, tort reformers claims of "frivolous" lawsuits).

Here's how Sorry Works! works: After a bad outcome or adverse event, doctors and medical staff do a root cause analysis as quickly as possible. The sole question they are trying to answer is: "Was the acceptable standard of medical care met." This root cause analysis takes anywhere from a few weeks to a few months and may involve outside experts.

If the answer turns out to be "no" and there was a medical error, then the doctors schedule a meeting with the patient and/or family, encourage them to retain legal counsel, and at that meeting apologize and admit fault, tell what went wrong, how the problem will be fixed so it doesn't happen again, and offer fair, upfront compensation. Of course, the hospital/doctor's offer will be a little low, the plaintiff's attorney will counter with an offer that is slightly high, and they will meet somewhere in the middle. But the case will be resolved in a matter of weeks. Healthcare organizations save money on defense costs and the settlement costs too because the family/patient will usually except a little lower offer because they weren't drug through years of litigation. Trial lawyers save a lot of money because cases are disposed of in weeks/months instead of years, plus there is little chance of losing a case and receiving nothing.

If, on the other hand, the standard of medical care was met and there was no error, the doctors and medical staff still meet with the patient/family and their attorney, explain what happened, open the charts and make them available, and basically prove their innocence. The family and attorney are encouraged to have their own experts review the charts if they wish. This candor reduces non-meritorious cases dramatically and saves everyone (trial lawyers, docs, patients) a lot of time, trouble, and money.

As for the immunity provisions with some of the legislation out there, it's really not important. Why? I often tell doctors if they go through a disclosure event, apologize and offer fair compensation AND still get sued they should want to run to court and tell the judge and jury they tried to do the right thing but the plaintiff is all about money. Great legal defense. I tell docs they should fire any defense lawyer who coaches them that keeping apologies and compensation offers out of court are a good idea. The whole notion of immunity for apologies is really a silly idea, BUT to get disclosure programs off the ground many doctors feel they need immunity provisions because they've had it beat into their heads for so long not to talk to patients after bad outcomes.

In the interest of full-disclosure, I lost my oldest brother to medical errors seven years ago and have performerd public relations work for both tort reformers and the trial bar in the med-mal crisis. I beleive Sorry Works! is the middle ground solution to the med-mal crisis that best serves the needs of all stakeholders.

Please feel free to contact me at 618-559-8168 or doug@sorryworks.net. Also, please visit our website: www.sorryworks.net.

Thanks,

Doug Wojcieszak
The Sorry Works! Coalition
www.sorryworks.net

Dear Doug Wojcieszak,

You are proposing a solution for a problem that only exists because many medical providers lie, conceal and avoid their professional and ethical responsibility to do exactly what you plan to bribe them to do.

If a lawyer allows a statute of limitations to run he has a professional and ethical responsibility to fully inform his client of the mistake and of the client's right to have representation and to seek compensation. I find it hard to believe that doctors (out of fear of a lawsuit) can ethically pretend that nothing improper occurred during their treatment unless they are provided with the protections of your proposed legislation.

Has "Do No Harm" become "Speak No Truth"?

Dear Greedy Trial Lawyer,

I agree with many of your comments. Principally, the so-called med-mal crisis is not a crisis of too many lawsuits but too little honesty, too little communication, and too many medical errors!

Honesty and disclosure not only reduces litigation and saves time and money for all sides, but when docs and hospitals truthfully analyze errors they have a better chance to learn from them and reduce future errors.

As I said during my initial response, the apology immunity provisions of Sorry Works! are merely window dressing to make doctors feel more comfortable apologizing. Why is this necessary? Well, you highlighted it in your comments. Many doctors are not comfortable truthfully discussing bad outcomes with patients and families, even though it is their ethical obligation and requirement. The fact is doctors have had it beat into their heads for so long that they should run away after an error. Many medical schools actually teach it too them! Crazy!! These immunity statutes help break that cultural hangup. However, from a legal stand point, these so-called immunity provisions are truly a legal nothing. Good defense lawyers should want to bring disclosure events into court, and as a trial lawyer you should lick your chops if a docs discloses then decides to cover up in court. Wouldn't you love to expose such a doctor in front of a jury?

I welcome you and your readers to visit our website: www.sorryworks.net. And I welcome phone calls too: 618-559-8168.

Doug Wojcieszak
The Sorry Works! Coalition

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