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New Approach To Medical Malpractice: Disclose, Apologize and Offer

November 11, 2013

Doctors are human, just like everyone else. Consequently, doctors can and do make mistakes. When medical malpractice does occur, the defense-oriented culture has nearly always been to deny, defend, and counter attack. One major medical university, however, has taken a polar opposite approach. The University of Michigan subscribes to a unique approach: when a member of their medical staff makes a mistake that injures someone, they disclose it, apologize, and offer compensation or "DOA".

The first step of the DOA approach is disclosure. When a patient is injured or dies, the first step is to disclose what happened. This means telling the truth, even it is means disclosing something that is damaging. The next step is to apologize when appropriate. In many jurisdictions like Illinois, an apology, alone, is not even admissible evidence. When the injury occurred because of a medical malpractice, the last step is to promptly offer fair compensation. If the injury is serious or death has occurred, fair compensation should be between six and eight figures depending upon the circumstances.

In the past, jurisdictions like Illinois have attempted to legislate hybrid approach. Illinois once allowed doctors and hospitals to apologize and explain what they did wrong--but bar any use of the explanation at trial if the explanation was given within 72 hours of the occurrence. The theory was that offering an apology, along with an explanation, would reduce the likelihood of a medical malpractice claim. In the event this did not work, the doctor's explanation would never be allowed at trial. Many opponents of this one-time, free explanation was unfair and dishonest. Ultimately, the tort reform statute, which included this rule, was held unconstitutional in Illinois.

A true DOA approach is admirable. Unfortunately, few if any major institutions are regularly practicing this approach. As a medical malpractice lawyer, I regrettably feel it is unlikely this approach will ever be fully implemented by medical providers across the country. This is particularly true for medical providers who are not self-insured and, instead, rely on medical malpractice insurance. After all, medical malpractice insurers would not look kindly on an insurer who readily admits making a medical mistake on the insurance company's dime.

Sources Used:

University of Michigan Health System, Doing The Right Thing When Things Go Wrong, December 23, 2012.

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