Madison - St. Clair Record

Sunday, September 22, 2019

Governor abolishes boards and committees, includes medical apology program that never was

By John Breslin | Apr 4, 2018

An executive order abolishing various bodies and committees was signed Friday, a move made to streamline government and save costs, according to Gov. Bruce Rauner's office.

But at least one of those programs, which technically has been up and running for 13 years, never even began its work, acccording to the architect of the legislation that led to its formation.

The 2005 Sorry Works! Pilot Program was aimed at evaluating how best to allow hospitals and physicians to apologize after procedures go wrong, but without admitting liability initially and offering fair settlement after review.

Doug Wojcieszak, the founder of the Sorry Works! organization, said nothing ever happened, that there was no committee set up to evaluate the program, and no funding was provided.

"It never went anywhere," Wojcieszak told the Record.

Rauner's inclusion of the Sorry Works! program and his abolishing of the committee does not really mean anything, Wojciesjak said, comparing it to previous moves made to clean up the legislative books by removing defunct laws.

Rauner issued the executive order abolishing 19 boards and commissions that have been inactive for five years or more.

Some entities were temporary, others swallowed up other arms of the state government. Over the years, either by statute or executive order, the state of Illinois has created more than 600 authorities, boards, commissions, councils, task forces, and other similar entities, according to a statement from the governor's office.

The action taken, it added, is the first step in a plan to eliminate more than 100 such entities in the months ahead.

In the case of Sorry Works!, Wojciesjak continued to develop his own program, reaching out to hospitals, nursing homes, and other facilities with his own disclosure and apology system.

The language contained in the bill is similar  to what Wojciesjak has been preaching and practicing in Illinois and across the country. It is a move away from the historic deny and defend approach, he said.

Wojceisjak, who describes himself as a veteran legislative hand, pushed for the bill when he was first setting up his own Sorry Works! consultancy business.

The legislation allowed participating hospitals and physicians to "promptly acknowledge and apologize for mistakes in patient care and promptly offer fair settlements" without fear of being penalized legally.

It encouraged patients and families "to retain their own legal counsel to ensure that their rights are protected and to help facilitate negotiations for fair settlements."

Those hospitals involved would report to the committee their total costs for "healing art" malpractice verdicts, settlements, and defense litigation for the preceding five years to enable the committee to determine average costs for that hospital during that period.

And the committee would then have developed standards and protocols to compare costs for cases handled by traditional means and cases handled under the Sorry Works! protocol.

At approximately the same time, in 2005, iIllinois enacted an apology act, but it was imited to "expressions of grief or apology that occur within 72 hours of when the provider knew or should have known the cause of the negative outcome."

Other states have more robust defenses that provide cover for any “statements, gestures, or expressions or apology, benevolence, sympathy, or commiseration made by a health care provider to an alleged victim of an unanticipated outcome of the victim’s relative or representative.”

Wojciesjak was motivated to devote his time to the issue of medical malpractice and how to settle actions following the loss of his oldest brother to medical errors in 1998. His family successfully sued the hospital and doctors with the case settling in 2000.  

The hospital attorneys – not the doctors – empathized with the Wojcieszak family, but only after the case was settled and money exchanged hands, and they did not admit fault or apologize for the incident, Wojciesjak explains on his website.

The board of directors of Sorry Works! includes doctors, risk managers, insurance specialists, and lawyers.  Formerly a limited liability company, it is now a registered non-profit.

Wojciesjak is invited by facilities to explain to leadership exactly how an apology and disclosure system can work.

He begins by throwing up a scenario where a procedure goes tragically wrong, and simply asks those in attendance how they would respond to distraught family members.

In many cases, Wojciesjak said that staff do not know what to say, and that sets themselves up for a lawsuit.

He said his mission is to train staff to respond to be empathetic and obviously open to helping in any way, whether with transportation, food or even organizing clergy. But they should, at that stage, not admit fault, he added.

"I am sorry. They want to hear that, and do not want to see the doctor running away," said Wojciesjak.

The next step is a review, one carried out by an independent, outside, individual or entity. If the doctor, or other staff, are found to be at fault, then the facility would proactively seek to resolve and settle the matter.

While the families are welcome to hire and bring an attorney to any negotiations, some do not and are more interested in a response on an emotional rather than financial level, Wojciesjak said, adding that they want to tell their story, and make sure it never happens again.

"It can be settled within weeks, sometimes days," said Wojciesjak.

The worst that can happen is that a doctor walks out of an operating room and admits he killed a patient, he added. Then, after a review, it is found he or she was not at fault.

The biggest impact of this approach is that it changes the nature of the discussion around disclosure, said Wojciesjak.

He cited the example of the University of Illinois as one organization he has worked with, but said many facilities prefer not to broadcast their support of the program. Many general counsels are not yet ready to encourage their employers to do so, he added.

While Wojciesjak is based in Edwardsville, he operates nationally along with other pathfinders in the field.

Stanford Medical Center in California is among those institutions to have embraced the idea of "communication-and-resolution programs."

In a 2017 study, published in Health Affairs magazine, Stanford researchers found such programs help prevent litigation, lower costs, and even improve patient safety. Their study centered on two Massachusetts medical facilities.

Lead author Michelle Mello, a professor of health research and policy and of law at Stanford, told the university's website: “In these programs, hospitals scrutinize every serious harm event to answer the question, ‘What can we learn?’”

Mello added, “Traditionally, a risk manager’s focus has been on the patients who complain about the care or threaten to sue. But every patient deserves to know that what happened to them is being taken seriously.”

The study found that telling patients about errors and proactively offering compensation does not cause liability costs to skyrocket.

Of the 989 adverse events reviewed for the study from 2013 to 2015, only 5 percent led to malpractice claims or lawsuits, the study found.

When the program did lead to compensation, the median payment was $75,000. By comparison, the median payment nationwide in 2015 when plaintiffs prevailed in malpractice lawsuits was about $225,000, Mello said.

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Illinois Governor Bruce Rauner State of Illinois General Assembly