Defense Lawyers, Claims Guys Just Don't Get Open Med-Mal Settlements...

Two weeks ago I penned a column about keeping med-mal settlements open (not closed) to encourage learning, sharing of stories, and healing -- and to also encourage more transparency and disclosure. See below for original column. I shared this e-newsletter column through various LinkedIn groups...and some of the defense lawyers and claims guys did not approve. In fact, they were mean and sarcastic.Said I didn't know what I was talking about....didn't have any litigation experience or I would know why ALL settlements must remain confidential. One lawyer said we can't have plaintiffs shouting from the roof tops how much money they got in a case! While another "seasoned" med-mal defense lawyer said he could see no benefit to plaintiffs by making a settlement public, or open.

Wow! We still have a lot of people who just don't get it! Just don't understand what these cases truly mean to patients, families, and clinicians. Hint: These cases are not all about $$$.

To be clear, I am not recommending that across the board all settlements should be open. However, we should approach each settlement with the mind-set of keeping it open. Many patients and families want to talk about what happened, and, no, it's not to scream they "hit the jackpot" but, instead, to describe the care, post-event communications, and what can be done to improve medicine. Clinicians also need to talk about these cases to learn. Everyone needs to talk to heal.

What I am concerned about is when a case is completely closed and we are not allowed to talk about any details: the medical error, the post-event communication (or lack thereof), how the family's needs were met (financial and otherwise), how the clinicians were treated, how the mistake will be prevented in the future, etc. This is the danger of closed settlements. Disclosure is all about talking and sharing, and the talking and sharing should NOT stop at the settlement.

Finally, talking about a settlement figure is one way to show we are fair to patients and families when mistakes happen. Sure, there will be a few consumers who will wonder, "Gee, where is my payday?" just like there are some defense lawyers who look at new cases and wonder how long they can stretch them out to rack up billable hours.  I choose, however, to look at the positive...focus on the good people who want to do right....people who will look at a fair settlement offer and remark, "The hospital has integrity."  For too long, the med-mal debate has focused on the negative which has damaged us all.

Once again, some defense lawyers and claims guys have demonstrated their inability to grasp the emotional aspect of med-mal cases. They are so fixated on money that not only do they miss the big picture, they end up costing their employers/clients more money because they continually anger patients and families while emotionally damaging the clinicians they claim to be protecting.

In the new Sorry Works! Tool Kit Book, we dedicate two chapters to the development of your disclosure policy, and open settlements (along with a lot of other great ideas and suggestions) are included in those chapters. Get your copy today!

May 20, 2015: Confidential Med-Mal Settlements?

A study was recently released by Dr. Bill Sage, MD/JD on confidentiality agreements in medical malpractice settlements. Sage's study provides numbers/statistics to a widely known practice in med-mal agreements. However, the summary of the study also says with disclosure becoming more prevalent, hospitals and insurers should re-consider their settlement practices.

I have had several attorneys (both defense and plaintiffs) say that confidentiality agreements are just another "check box" on the way to settlements. It's simply a habit or common behavior that many people don't really think about -- but needs to be thought about now!

As you design your disclosure program, think about confidentiality clauses in your settlement documents. The whole point of disclosure is to talk about stuff and share stories and experiences...not just with patients and families, but also among clinicians. It's how we heal and learn. In the new Sorry Works! Tool Kit Book, we say that you should approach all settlements with the mind-set that all cases will remain open for people to talk about (unless there is a really good reason to close a case). The Tool Kit Book (which can be purchased separately or part of the kit) provides a lot of practical advise on how to design, develop, and sustain your disclosure program. For ordering information, click on this link.

Here is the link to Dr. Sage's study, and here are recent blog postsfrom Sorry Works! on confidentiality agreements, including an article where a hospital required a family to sign a confidentiality agreement before the hospital's leadership would talk with the family!