Negligence means never having to say you're sorry

John J. Hopkins Feb. 13, 2005, 4:52am

For this Valentine Day’s edition, the most appropriate old movie to depict is the 1970 weeper “Love Story.” This tear jerker, for those of you too young to remember, was THE romantic date movie of the year.

The movie’s tag line, "Love means never having to say you’re sorry"--incomprehensible and inaccurate though it might be--is clearly the most famous part of an otherwise lousy film.

Here in Illinois a movement is growing that would allow a doctor or hospital to apologize, without fear of later reprisals in litigation. Assuming such a statement would even be admissible, the program is designed to permit expressions of condolences without consequences of an admission of liability.

Such policies are growing in popularity based on the observation that patients are far less likely to sue over an error if the medical community explains what has happened, shares a plan to prevent similar occurrences, and if needed, tenders a "reasonable" settlement.

This program is being pushed by Doug Wojcieszak, consumer advocate at Victims and Families United.

Mr. Wojcieszak stated in a recent interview, "Having a tool to allay families' anger and address systematic problems gives nurses greater control over patient care, and that such policies also encourage clinicians to report errors rather than keep quiet for fear of litigation.

"Moreover, apologies ensure open communication between clinicians and patients, avoiding the wedge that lawsuits drive between the patients and the people who want to help them."

Certainly in the perfect world, all the above is true. But we live in a most imperfect world, one in which open communication and the admission of mistakes, especially medical mistakes, are as common as flying monkeys.

If the foundation of “Sorry Works” is the recognition of physician infallibilities, then it is in trouble. While Mr. Wojcieszak and his colleagues are well-intended--and certainly the cause is noble--it is naive.

While the avoidance of litigation without sacrificing just compensation is a laudable goal, it truly fails to take into account a culture of concealment ingrained in the medical profession. This culture is fostered by its privileged status before the law--chief being the Medical Studies Act.

The Act allows so-called candid and self-critical discussions following an “incident” - someone dies or is badly injured - and further allows these discussions to be sealed and shielded from the view of the patient or their representatives, no matter how vital to the proper investigation they may be. There is no history of open dialogue with the medical profession. In fact, quite the opposite.

From the "Families’" standpoint, apologies after the fact are welcome, as an expression of human sympathy, but they are no substitute for the truth. If ALL records were available, and the Medical Studies Act abolished, then the lofty goal of knowledge without litigation has a chance to succeed.

Real reform would be a trade-off allowing the apologies, and then the Medical Studies Act could be repealed.

No chance of that happening, so we will have to get the information the old fashioned way - through a lawsuit.

While the prospect of apologies warrants discussion, the latest proposal from Republican tort reformers does not. The latest plan designed to usurp Constitutional rights calls for the creation of a “"Super Court" to hear medical malpractice cases, composed of all 38 Counties in the 5th District--crossing over county boundaries and bringing cases in areas without any connection to the forum.

I thought Republicans were opposed to case shopping!

Sen. Luechtefeld's hare-brain scheme would create this special “Malpractice Court,” with the judges in the court selected by a specially appointed panel--with marching orders to hold the line on the excessive verdicts. The obvious hypocrisy is almost too much to bear, but thankfully, this bad idea stands little chance of passing.

How ironic is it that when it serves the purpose of tilting the playing field their way, the tort reformers show no respect for local courts, or the value of having a true interest in cases. I guess it all depends on whose ox is getting gored.

On a final note, I was fascinated by the Record on-line poll of Feb. 3. The question for the masses was, “Would the economic climate of the region, and the state, improve if the state’s system of justice were reformed?"

The response to this loaded question was most surprising, given the philosophical bent of the average Record reader. The answer was “Yes,” but only by the narrowest of margins--50.65 to 49.35 percent--a statistical dead heat. It's an indication that even in the Land of the Record, hope springs eternal, and that virtually 50 percent feel things are just fine--no overhaul needed here.

It appears that the TRUTH is getting through the fog.

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