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A recent study published in the Annals of Internal Medicine indicates that when doctors disclose having made a medical error to the patient, the patient is less likely to sue. This in turn reduces a hospital’s liability costs by reducing the number of claims for compensation.

The study looked at the results of a comprehensive claims management program begun in 2001 at the University of Michigan Health System (UMHS) based in Ann Arbor. Prior to the program, the system handled possible malpractice situations like most other medical care institutions, by cutting off all communication between the treating physician and the patient while parties prepared to go to trial. Now, UMHS conducts an internal review of each case and shares the findings with the patient, and perhaps most importantly, including whether the physician committed a medical error.

The study considered medical malpractice claims filed from 1995 to 2007 to compare results before and after the program was instituted. The disclosure program led to a decrease in new legal claims, time to resolve claims, and total liability costs. The researchers found a 61 percent decrease in spending on legal defense costs and a dramatic drop in the number of pre-lawsuit claims and pending lawsuits (from 260 in 2001 to just over 100 this year).

A spokesman for UMHS states that the statutory six-month “cooling off” period required in Michigan for med mal lawsuits is used to investigate complaints and establish a dialogue with patients, and their attorneys if they are represented, which often eliminates their need to resort to litigation. It was noted that this program is not an “apology program” but “a comprehensive program that integrates patient safety, peer review, and an educational program.”

Colorado does encourage “apologies” by physicians, with little regard or benefit to patient safety. Colorado’s apology statute, which specifically applies to medical malpractice actions, reads:

In any civil action brought by an alleged victim of an unanticipated outcome of medical care … any and all statements … expressing apology, fault, sympathy, commiseration, condolence, compassion or a general sense of benevolence … shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

Because Colorado’s statute specifically renders statements of “fault” inadmissible, a doctor can admit fault to a patient in private and then deny liability in court. Of the twenty-six states with apology statutes, Colorado’s law provides the physician with the most protection. Perhaps in the future our Colorado care providers will take genuine steps toward patient safety such as those pursued by UMHS, and forego the empty “apologies.”

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