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Not everyone is waiting for the law to change. More and more hospitals are following the lead of pioneers like the Veterans Affairs Medical Center in Lexington, Ky., and Johns Hopkins in Baltimore, Md., in establishing formal policies requiring medical staff to promptly admit and apologize for mistakes. Having adopted that approach, the University of Michigan Health System in Ann Arbor, which encompasses the university medical school, three hospitals and numerous other health facilities, has seen its annual number of malpractice claims and lawsuits drop almost 50%, from 260 in 2001 to 140 in 2004, and its average legal expense per case fall at virtually the same rate, to $35,000. Dr. Darrell (Skip) Campbell, a transplant surgeon and the chief of staff, says the new openness has the added advantage of allowing doctors to explore what happened. "The natural reaction when something goes awry," he says, "is to sweep it under the rug. [But then] you don't find out what the problems are."
Proponents say an apology may take some of the bitterness out of what has become an all too adversarial relationship between doctors and patients, making malpractice victims more amenable to a negotiated settlement, which is typically less costly and time consuming than a lawsuit. On a broader level, having a policy of apologizing may help a hospital's reputation or credibility. Says Robert Lord, chief legal officer for Martin Memorial Health Systems in Stuart, Fla.: "When we go into litigation and deny liability, people tend to take that more seriously."
When it comes to malpractice, the medical community seems open to experimentation. Limits on damages for pain and suffering, like the $250,000 federal cap that President George W. Bush has tried in vain to get through Congress, are increasingly seen as little more than a Band-Aid: recent studies cast serious doubt that such caps would make malpractice-insurance premiums cheaper. Meanwhile, long-term options, like a no-fault system with specialized medical courts and expert judges, are still largely in the theoretical stage.
Skeptics may think malpractice litigants are interested in just money, but there is at least some evidence to support the notion that it's also about emotional redemption. A series of academic studies over the past decade have shown that in many cases, victims are more likely to sue their medical provider if they feel he or she has not been sufficiently compassionate and communicative. Although she's not a scientific researcher, Jennifer Dingman of Pueblo, Colo., knows that firsthand. Soon after her mother died in 1995 at age 78 as a result of a series of misdiagnoses and medication errors, Dingman started a patient-advocacy organization called PULSE, or Persons United Limiting Substandards and Errors in health care. "In every scenario, people who have filed lawsuits wish they hadn't had to go through this," she says. "One hundred percent of the time, we hear, 'If only the doctor had apologized.'"