Thursday, April 12, 2007


I learned for the first time today that there are laws in many states prohibiting the use of a doctor's apology as an admission in a malpractice claim against the doctor. (AP, R.I. 4/12/07) According to the report, at least 28 states already have the legislation and 8 other states are considering adopting it. Furthermore, the article reveals that insurers warn doctors against the dangers of apologizing or using words such as "error", "mistake", "fault", or "negligence" in talking to their patients.

Is this what our legal system has wrought? Have we so intimidated the medical profession that its members fear admitting their mistakes and offering to correct them; that we need legislation to protect them against the consequences of apologizing? Concededly, doctors are faced with baseless malpractice claims, exorbitant insurance premiums, the expenditure of time and emotion in defending suits and the possibility that their mere threat causes them to practice and prescribe in a manner that they would not do otherwise.

But likewise, there are legitimate malpractice claims. Do we want our medical profession to be more concerned with potential liability than being candid and caring for the health and well-being of their patients. And if morality and principle do not suffice, practically, who is more likely to be sued, the doctor who admits his mistake to the patient and offers to correct it or the doctor who conceals and avoids confessing the error.

I had a doctor for years who had a sign in his waiting room: I HAVE NO INSURANCE. IF YOU PLAN TO SUE ME, PLEASE GO ELSEWHERE. If he made a mistake, I know he would tell me, because he was more concerned with my health than his liability. If we in the legal profession have reversed that then I hope none of us ever gets sick.


Anonymous said...

You mention baseless medical malpractice claims. After almost thirty years of practice as a plaintiff's lawyer, I have yet to see anyone bring one in my state, Oregon.

Anonymous said...

Indeed, Judge, it has come to this. I quit obstetrics in my mid-50's because of the legal profession. I practice in a rural area with about 70% of my OB patients having been on Medicaid. One of those patients lost a baby because of an unpredictable and untreatable event. No matter, she followed the 1-800 # to the trial lawyer who promised her just compensation. After lots of threatening letters and demands for millions of dollars (that I do not have) he never even filed the case. But that was enough for me. My youthful idealism lasted longer than you might think but it is gone now. I now do office practice only and my liability premiums have gone down from $155,000 to $15,000 a year. The fear of fighting a case that there was no way I could "win" even if I were exonerated in court and the fear that the next patient would be a repeat of this woman was just too much. I was very good at obstetrics. But the pervasive sense of fear was overwhelming. I think I will leave medicine entirely now and go into something that allows one to get away with almost anything with no fear of the trial lawyer bar,,,,,politics.

Anonymous said...

I own an experimental aircraft, and I know of a number of owners who either (a) do not carry insurance, and/or (b) have the plane as an asset of an LLC. They are trying to ensure that if they are involved in a crash and the lawyers start the game of "follow the money", they will sue other people, or give up the quest.
The best defense against lawsuits is to be devoid of funds or assets. (note that this is not quite the same as suddenly giving away all of your assets to friends, relatives etc. or leaving town to move to a different state or country; those are post-hoc evasion, devoid of ethical or moral value).