Sorry Works! awaits State House action

Could an apology solve the state's medical malpractice insurance crisis?

Doug Wojcieszak of Victims and Families United, a local patient advocacy group, believes a concept called Sorry Works! can be a part of the solution.

So does the president of the Illinois State Medical Society, which has often been at odds with the trial lawyer-backed group, though he said certain legal assurances are needed before he would jump on board.

"Anger is what drives most medical malpractice suits," Wojcieszak said. "Patients get angry when things don't go right, and there's no apology, and everybody clams up. Sorry Works! is a two-step program that's more than just apologizing. It's also about being open with families about what happened and offering compensation (when there have been medical errors).

"What this does is lower the number of lawsuits, settlement costs, and defense litigation bills without limiting constitutional rights," he said. "It does increase the number of settlements, but overall costs come down."

Dr. Ken Printen, president of the Illinois State Medical Society, said he is open to the idea.

"We think Sorry Works! does work," Printen said. He added, though, that doctors and hospitals would need guarantees that expressions of sorrow or sympathy could not be used against them.

"I think what gets physicians nervous -- and this is the difference between their approach and ours -- is that there is a long history that when you say you're sorry, that is seen as an admission of guilt," Printen said.

"I think everybody realizes, especially in a smaller town, not being able to say you're sorry when there is a bad outcome cuts ties between a physician and a family, and in some smaller towns, it may be difficult to find another physician," he said.

House Bill 4847, which has passed the state senate and is awaiting action in the house, would create a pilot program for two hospitals to try Sorry Works!. If medical malpractice costs climb, the state would pay the difference. If they drop, the hospitals would save money and the state would pay nothing, Wojcieszak said.

The bill allows doctors or other medical staffers to express sympathy for a bad outcome within 72 hours, without having the expression used against them, according to Wojcieszak.

Printen said much more protection than that would be needed before health care providers would back it.

Wojcieszak said he is happy to learn Printen is open to the concept.

"I'm encouraged to hear that Dr. Printen says this, and I'd certainly welcome the chance to talk with him," Wojcieszak said. "I realize that it is a cultural change, a leap of faith for many people. But it's happening at different hospitals. If Dr. Printen wants to work with us, we'd welcome it."

Wojcieszak said his group began promoting the idea for Illinois about nine months ago, after he learned about a Sorry Works! program at a Veterans Administration hospital in Lexington, Ky. The program there was adopted in 1987 after two big malpractice cases cost the hospital more than $1.5 million.

Dr. Steve Kraman, then the hospital's chief of staff and now a professor at University of Kentucky, created Sorry Works! in the belief that expressing sorrow for patients who are hurt or die -- which often happens even when medical care is proper -- can soothe feelings and reduce lawsuits.

The hospital allowed doctors and others to express sorrow. It also reviewed complaints about bad outcomes and opened the reports to claimants or their families, so they could know why the bad outcome occurred. If a doctor or hospital did something wrong, settlement talks began.

Liability costs soon dropped below those of comparable VA hospitals, according to Kraman.

Similar results have occurred at the University of Michigan Health System, which started a Sorry Works! program in 2002, said Rick Boothman, assistant general counsel and architect of the program there. Boothman spent 22 years as a trial attorney before joining University of Michigan Health System in 2001.

"Because I am a recovering trial attorney, I bring to the process a little different perspective than the usual in-house hospital attorney," Boothman said. "Any discussion must start first with a statement of our principles. Every story done about our system kind of gets it wrong. It's not just about apologies.

"We have three principles. First, if we have injured a patient, we are committed to making it right as quickly and as fairly as possible. Second, medicine is inherently risky, so the second principle is that if our care was reasonable, we will defend ourselves aggressively and not pay for the sake of expediency. Third, we are determined to learn from our mistakes and do that as quickly and as openly as possible."

Boothman said there had been a corporate culture to not discuss mistakes. Sorry Works! changed that.

"We said, 'What is the harm in talking about it immediately?'" Boothman said. "We do that openly and honestly now. Many complaints went away because the plaintiff's bar saw this was a two-handed approach. We've been open with them, and we've cautioned them not to bring medically unsupported claims, because we will vigorously fight those."

Results, though early, are encouraging.

Prior to July 2001, the university health system had 250 to 260 claims and lawsuits at any given time, Boothman said. As of July 2004, the system has had 120 to 140 claims and lawsuits at any given time. The average amount of time from the filing of a claim to its resolution has dropped from 1,100 days to 320 days. And litigation costs have dropped from $3 million to about $1 million, according to Boothman.

Another key to the program's success is Michigan's unique requirement for a six-month notice period before a lawsuit may be filed, Boothman said.

"Before anyone can get sued, a patient must give six-months' pre-suit notice," he said. "This gives everybody time to look at it. I don't know of any other system that does this in a systematic and consistent way.

"Litigation as a dispute resolution tool is not all bad, but it was never meant to be a first resort," Boothman said. "Our goal is to be open and honest and to fast forward everything and present patients with both sides of the coin, so everyone knows what they're getting into if it gets to litigation."