Medicine Means You Never Have to Say You’re Sorry

Just as hospitals are encouraging us to apologize for our mistakes, comes a warning from Steven I. Kern, JD.  He cautions that admitting errors may result in loss of malpractice coverage.  He states :

For example, many malpractice insurance policies include a clause that allows the carrier to deny coverage if you do anything that adversely affects its ability to provide a defense.

He relates that saying sorry is basically an admission of wrong doing, and that anyone who hears you say that you are sorry can be used as a witness to testify against you in a malpractice suit.  Mr. Kern also notes that the push by hospitals for physicians to admit to mistakes may actually be based on an effort by the hospital to shift liability away from the hospital and toward the physician.  Yikes!  He also notes that saying sorry can lead to sanctions from peers, family wrath and economic loss.   What he recommends is that first, notify your “health care” attorney, and then together decide if you should notify your insurance carrier.  He then states that the three of you decide if it is appropriate to say “sorry.”  After that, the three of you will craft an appropriate response “to best communicate your regret in a way that is likely to make matters better, not worse.”

Mr. Kerns advice is good, but sad.  How pathetic that we live in a society where admitting we are human and that we have made a mistake is fraught with danger.   He does note that 35 states have variations on ‘apology laws’,  which he describes as “exempting expressions of sympathy and empathy to exempting admissions of fault.”  However, I still would check with your malpractice carrier first before making a move.

As he notes:

Unlike in church, confession doesn’t necessarily lead to absolution in the world of medicine.

I don’t know about you, but last time I checked, I was only human.  Crazy place, this world.

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Taking on the JAMA JDs

Being the socially responsible, business minded physician that I am,  (NO this is not an oxymoron!), I read with interest the commentary from  the Jama, October 15, 2008 issue (pp 1806-1808), titled, “The Professional Ethics of Billing and Collections,” by Mark A. Hall, JD and Carl E. Schneider, JD.  After I calmed myself about having to deal with anything written by lawyers, I got a little angry.

The article misses the elephant in the room.

They review “two models of professionalism” –the transactional method in which physicians get paid for the work they do.  In the relational model, “medical service is embedded in a therapeutic relationship in which physicians have personal and moral ties to patients that make maximizing profits inappropriate.”  Meaning, maybe the physician will get paid, but the ‘personal and moral’ obligations make getting paid optional.   ( I don’t see a lot of physicians maximizing profits, rather most primary care docs are trying to break even.  And, I think the very fact that we practice medicine means we have a moral and personal obligation to the patient.)

The authors then note that one third of physicians offer no discounts or free care to poor patients.  They also state a large amount of ambulatory care clinics demand payment in full from uninsured patients.  Hall and Schneider adopt a scolding tone for physicians that ask for immediate co-payments and attempt to collect on overdue bills.  The authors site the AMA’s ethical opinion that urges “compassion and discretion in hardship cases.”

Duh.  I don’t know about you, but I try to help when I can.  I try to limit testing/referrals with out compromising care, and give out free drug samples when I can.  ExtraMD worked at one rural practice where most of the patients relied on free drug samples because they couldn’t afford their medications.  As a hospitalist, I see a fair amount of the uninsured (“self insured” to use the jargon,) and have rarely heard any physician or nurse complain about caring for this population.  I know I will never get paid for a lot of the work I do.

What disturbs me about this comentary was the implication, that we as physicians must “honor the bonds of trust and care that tie patients to physicians,”  and stand by while the government bails out Wall Street Tycoons and ignores the health care needs of America.  I also take umbrage with the statement that physicians have a “monopoly” on medical practice.  I don’t have a monopoly over any patient.  They can go to any doctor that will see them.  I certainly don’t set the fees of any physician besides myself, and can not force any insurance company to pay what ever I fee I set.

So what is the elephant?  The fact that this article attempts to shift the burden of caring for the un/under/self insured  to the physician.  The fact that it ignores the first rule of business, that if revenues don’t meet expenses the doors shut.  The fact that it scolds physicians who want to get paid for the work they do. 

Perhaps, given the quotes the authors use from both 1832 and 1932, they feel getting a dozen eggs or a quart of fresh milk would be payment enough.  However, it’s pretty darn hard to pay the rent with the zucchini from someone’s garden.

Actually, next time I have a legal question, I shall contact Mr. Hall and Mr. Schneider.  I’m sure they will prorate their services or gladly accept one of my killer lasagnas if I can’t pay their fees.

Please leave all food donations, and live animals on my door step.  I am partial to homemade jam and bread, but I don’t know if my mortgage company is.  (Ah, well, it’s WaMu so it should be okay…)