We are a nation of laws based on an assumption of fairness. When two sides can’t agree you go to court. You know how this works.
Except in Wisconsin.
No matter how egregious the error in any potential medical malpractice case, it’s almost a given that doctors will suffer no consequences because of the blatant pro-medical favoritism of Wisconsin’s laws. Families are left to pick up the pieces.
Or doctors could open the door to healing with an apology. It’s a lesson some of the top medical centers in this country are learning. It’s also a lesson that’s helping patients and medical staff, and saving money.
Hospitals at Harvard, Stanford, the University of Illinois and Michigan State have all embraced apologizing, when it’s warranted, for medical mistakes. Instead of finding someone or something to blame, the emphasis is in on righting whatever went wrong, even when that means apologizing to an injured patient.
“Communication and transparency are the keys,” said Melinda Van Niel, head of Harvard’s CARe program. “When we started the lawyers and the doctors were equally suspicious of the other.”
A Michigan State study found that, following the adoption of a program giving doctors greater leeway to apologize without having to worry about legal consequences, the number of malpractice lawsuits being filed dropped from just over two for every 100,000 patient encounters to less than one. And the time to resolve a claim dropped by nearly a third.
The key is offering an unvarnished apology. When things go amiss, what patients and their families most want is an honest explanation of what happened.
“The apology is powerful on both sides,” Van Niel said. “The patients have a sense of validation, the doctors can apologize freely, and both sides move forward.”
Interestingly, there is no connection between the apology and a settlement. Van Niel says that if the hospital or clinic is wrong it should own up to the error, take remedial steps and get the patient what they need as quickly as possible.
Then there’s Wisconsin.
There’s nearly a billion-dollar surplus in the Injured Patients and Families Compensation Fund that’s supposed to compensate victims of medical malpractice.
And a recent report in the Wisconsin State Journal found the fund balance is nearly twice what regulators recommend because fewer and few cases ever pay out. There were only two medical-malpractice cases last year and only 17 total in the previous four. The National Practitioner Data Bank put Wisconsin 49th in malpractice payments per capita from 2004 to 2014.
A representative of the Wisconsin Medical Society was quoted recently as saying, “We have high quality of care, so perhaps there are fewer negligence issues happening.”
If the standard of care here is so good, then why do Wisconsin doctors need freakishly high levels of protection? Do you really think our doctors are so much worse than their Minnesota or Iowa counterparts? Instead, they pay their lobbyists and shower political donations on both parties. The goal is to make sure nothing changes.
“Wisconsin could recreate a similar program to ours,” said Van Niel. “It takes stakeholders talking to each other.” The usual practice of “deny and defend” doesn’t help anyone, Van Niel said. “It’s equally difficult for all sides to change their perspectives, but if you don’t talk to each other nothing will happen.”
It’s not even a matter of cost. Van Niel says Harvard would gladly help Wisconsin take similar steps. “We want to help other states,” she said.
Granted, the Harvard model may not be a panacea. But it’s a place to start. A program that consistently shows it saves money, decreases lawsuits and gives a voice to victims deserves to be heard.
But we’re also held back by tone-deaf leaders on both sides of the aisle and in the medical community, and a virtually inaccessible patient med-mal fund. It’s hard to see anything is wrong when your head is that deep in the sand.
Victims deserve better. The Harvard plan seems like a good place to start — because the Wisconsin status quo isn’t working for the ones who need it most.