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Sorry Works! Blog

Making Disclosure A Reality For Healthcare Organizations 

Baltimore Hospitals Referring Patients-Families to Lawyers....

Website: http://www.sorryworks.net January 31, 2012 Doug Wojcieszak, Founder Contact phone/e-mail address: 618-559-8168; doug@sorryworks.net

BALTIMORE AREA HOSPITALS REFERRING PATIENTS-FAMILIES TO LAWYERS

Very interesting news story below - must read. Several Baltimore- area hospital systems are actually referring patients/families to plaintiffs lawyers as part of the resolution process in their disclosure programs. The attorneys on the "referral list" apparently know about the hospitals' disclosure efforts and will engage in substantive discussions (as opposed to litigating right off the bat), and will even take reduced fees in the process.

Very interesting story on multiple levels.

First, we are often challenged with the following question from physicians, risk managers, and others: "What will the plaintiffs' lawyers think of Sorry Works! They'll never go for this program!" We always reply to not worry about the plaintiffs' lawyers - as many do welcome this approach - but instead focus on the defense bar which often has an economic interest in seeing cases drug out for months and even years (to the detriment of caregivers, patients, and families seeking healing and quick resolution). Please note: Not all defense lawyers feel this way and many have come to embrace disclosure, but, there are still many defense lawyers who are stuck in deny and defend and they seemingly have an economic conflict of interest when advising their clients not to disclose.

Second, we've often said that Sorry Works! provides a chance to repair your relationship and reputation with your local plaintiffs' bar. A big part of the animosity between hospitals/physicians and plaintiffs' lawyers is the perception by PI lawyers that the healthcare community often tries to hide the football post-event. PI lawyers feel the need to go nuclear in quick fashion to preserve evidence and show the hospital/doc/insurer they mean business. Again, Sorry Works! provides the chance to change these relationship dynamics. The folks at University of Michigan Hospital system have written and spoken extensively about their outreach to the plaintiff's bar --- and it appears other hospitals might be following. Good news! Please understand, however, such outreach to the PI bar does not mean a check will be forthcoming every time a patient or family is unhappy. Legitimate cases will be handled quickly and fairly, but non-legitimate claims will fought all the way to jury verdict if necessary. The message to the PI bar is simple: The door is always open, let's figure out together which claims have merit, and which do not.

As you develop your disclosure program, seriously consider outreach to the plaintiffs' bar. Even in the most litigious venues, you will be happy with these outreach efforts over the long haul.

Third, we've often said that allowing patients and families to be represented by counsel adds great credibility to your disclosure program and will ensure the long term viability of said program. You don't want patients and families to have buyer's remorse or feel they were ripped off. I applaud the Baltimore hospitals for taking this step. Consider this statement from one of the Baltimore hospitals – it speaks volumes:

"Malpractice litigation is an expensive, painful and time- consuming process for both the patient and the providers. By approaching the patient and their family early, it is our hope that if compensation is appropriate, we can get that in the hands of the patient and their family when they need it: immediately," MedStar Health, which owns Good Samaritan, said in a statement.

"If the injury to the patient is relatively minor, we are very comfortable in having that discussion regarding compensation directly with the patient and their family without the involvement of attorneys. However, if the injury and the financial consequences of that injury are significant, we are much more comfortable knowing that the patient and their family has received independent outside legal counsel to help them make their decisions regarding resolution," the MedStar statement said. "To this end, we have identified a small number of very seasoned, highly-respected lawyers in the community who have impeccable reputations for being fair and honest" and who are willing to work for reduced rates.

Fourth, there is some discussion and debate in the article concerning does the hospitals' referrals lead to a potential conflict of interest for the PI lawyers? Hey, patients and families are free to choose any attorney they want, including the attorney suggested by the hospital – or not. Would a "referred" attorney provide less than zealous advocacy for a patient or family if the negotiations were not perceived to provide full value for the injury or death? Interesting question. I welcome the input of our readers on this issue....send us your thoughts at doug@sorryworks.net. Here's my thoughts: Having a PI lawyer who truly understands disclosure can be very valuable for a family/patient who doesn't want years of litigation and expense, and will be happy to give up some value in the case to settle things right now. Moreover, the patient or family is literally going into the situation with their eyes wide open...the hospital is suggesting lawyers X, Y, and Z. If the patient/family completely distrusts the hospital and their processes, they could instead choose lawyer A, B, or C. I guess I'm not so much interested in theoretical arguments at this point...instead, I want to see the Baltimore experiment continue forward and let's see what happens, including learning how patients and families feel about the process. That's the most important opinion!

Finally,I applaud the proactive qualities of the Baltimore disclosure programs. Instead of saying "sorry" and waiting to get sued, they are actively working with patients, families, and the legal community to resolve these cases and bring quicker closure and healing to all concerned parties. BRAVO!

To get help developing your disclosure program, contact Sorry Works! at 618-559-8168 or doug@sorryworks.net. Sorry Works! is great for Grand Rounds presentations, leadership retreats, ethics seminar, and other learning opportunities for your docs, nurses, and staff. Call or e-mail today!

Sincerely,

- Doug

Doug Wojcieszak, Founder Sorry Works! PO Box 531 Glen Carbon, IL 62034 618-559-8168 (direct dial)

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Malpractice lawyer recommendations come from unlikely source: hospitals Referred attorneys take cases at lower fee; some see conflict January 28, 2012 By Tricia Bishop The Baltimore Sun

After Ada George's thyroid treatment went wrong last summer, leaving the 57-year-old mother of three brain-damaged and comatose, officials from Good Samaritan Hospital approached her family twice to apologize and offer compensation, which the Georges refused, according to court records.

So the Baltimore hospital went a step further and recommended that the family get a lawyer. They handed over the business card of Brian Nash, who had agreed to take the Georges' case at a reduced rate.

The referral from such an unlikely source surprised the family, which already had an attorney. But in Maryland, it's an accepted - if little known - practice.

Several medical systems - including MedStar Health, LifeBridge Health and the University of Maryland Medical System, which collectively run about two dozen hospitals - keep lists of vetted lawyers who will accept patient cases for lower fees, often with the expectation that claims will be settled quickly.

Participating attorneys and hospital officials say the referral system is for the good of injured patients and their families, who can avoid the lengthy, draining litigation process.

But skeptics say the system has a built-in conflict of interest. Lawyers on the lists may defer to the hospitals because they feel beholden, rather than push for the best deal for the patient.

"The first question I would have if I were the patient is: 'Would I even want to get a referral from a hospital?'" said S. Allan Adelman, an Annapolis attorney and past president of the American Health Lawyers Association. "I think the whole relationship is tainted."

Adelman and several other attorneys contacted by The Baltimore Sun expressed shock at the practice. Others brushed it off as no big deal.

T. Christine Pham, a Baltimore lawyer who chairs the state bar association's ethics committee, doesn't see an inherent problem with a likely defendant recommending a lawyer to the probable plaintiff.

The Lawyers Rules of Professional Conduct largely leave it up to attorneys to judge whether they have a conflict of interest in representing clients. And the rules expressly prohibit lawyers from allowing a referral source to "direct or regulate [their] professional judgment."

"Just because it's a hospital referring him, [the lawyer] is not going to give the hospital a break," Pham said. It may be that the referrals go to lawyers who are deemed "not unreasonable," which, Pham said, can be interpreted by some as being lenient in"the highly emotional world of medical malpractice.

Such lawsuits generally take three to five years to work their way through the courts, according to a multi-year study published in 2005, and they frequently engender bad feelings on both sides. Industry observers say health care providers are suspicious of patient claims, along with the wild variability of jury awards. And patients often feel duped by doctors who won't admit liability, and by a legal system that frequently lets them down.

"The best estimates are that only 2 to 3 percent of patients injured by negligence file claims, only about half of the claimants recover money, and litigation is resolved discordantly with the merit of the claim (i.e. money is awarded in nonmeritorious cases or no money is awarded in meritorious cases)," said an article published last year in the New England Journal of Medicine.

Statistics like those are fueling efforts to reform the way medical liability is handled throughout the country. Many states, including Maryland, require mediation before litigation. Offers of apology and compensation often avoid lawsuits completely.

Maryland's lawyer referral practice is part of the larger reform dialogue, participants say.

"Malpractice litigation is an expensive, painful and time-consuming process for both the patient and the providers. By approaching the patient and their family early, it is our hope that if compensation is appropriate, we can get that in the hands of the patient and their family when they need it: immediately," MedStar Health, which owns Good Samaritan, said in a statement.

"If the injury to the patient is relatively minor, we are very comfortable in having that discussion regarding compensation directly with the patient and their family without the involvement of attorneys. However, if the injury and the financial consequences of that injury are significant, we are much more comfortable knowing that the patient and their family has received independent outside legal counsel to help them make their decisions regarding resolution," the MedStar statement said.

"To this end, we have identified a small number of very seasoned, highly-respected lawyers in the community who have impeccable reputations for being fair and honest" and who are willing to work for reduced rates.

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