APMA News - November/December 2011 - (Page 74)

Insurance Advisor By William F. Munsey, DPM And the Verdict is ... QUESTION: An Ohio doctor writes: “I read [that] an Ohio doctor who apologized for a mistake he made while operating on a patient would still be the loser of a $3 million lawsuit, even though Ohio has an apology law on the books. Do you still think proper disclosure is a good idea?” ANSWER: Before answering your question, we need to examine the facts surrounding this case. In summary, the case involves the death of a 49-year-old woman following back surgery. On page eight of the appellate court decision, we see that both the woman’s husband and daughter testified that the surgeon told them the back surgery went fine, but when they rolled her over onto her back, her blood pressure started to drop, and an ultrasound discovered bleeding. Then, according to the appellate court record, the husband and daughter testified that the doctor told them an “artery was nicked,” and he (the surgeon) took “full responsibility.” The daughter also testified in pretrial that the surgeon said he “was sorry,” but that statement itself was not brought into evidence by the defense (and the plaintiffs weren’t allowed to use it). The family was awarded a $3 million judgment, which was upheld by the appellate court. In his unsuccessful appeal, the physician claimed the trial court breached the Ohio apology law. The physician claimed that stating to the family that an artery was “nicked and that he took full responsibility” was in fact a way to apologize and therefore should not have been permitted as evidence by the court. The Ohio law states that “any expression of apology, sympathy, commiseration, condolence, compassion, or general sense of benevolence” cannot be admitted into evidence. According to the appellate court record, the physician argued that his statement admitting fault to the husband and daughter should not have been admitted in the trial court, stating that apology as commonly defined includes “expression of fault, admission of error.” The appellate court ruled that the Ohio General Assembly intended for the word “apology” to be construed as an expression of sympathy without admission of fault. If all of this is confusing, let me try to sort out the facts and show you how proper disclosure seems to be working, to reduce both time and costs by fairly compensating the injured party as well as protecting the doctor involved. We 74 APMA News November/December 2011 are not talking about frivolous or unjust claims, but incidents in which errors occur and the patient is entitled to some compensation. To begin, empathy and admission of guilt are two different scenarios. Example: “I’m sorry this happened,” is empathy, whereas, “I’m sorry we cut an artery,” is an admission of fault. Doug Wojcieszak, founder and spokesperson for the Sorry Works Coalition, when asked about the secret of his organization’s success, said it’s important to pause before admitting anything. Take the time to analyze the situation and uncover the facts before you make any admission of guilt. Once you have admitted fault, it’s hard to go back over the bridge. When a problem does occur—and it will—consult with the claims manager at your insurance carrier before taking any action on your own. The claims manager is there to help when the need arises. QUESTION: Can you explain the different verdicts that are common following a malpractice trial? ANSWER: You must remember that in order for a plaintiff to prevail, he or she must prove three things: a deviation from the standard of care, an injury, and the deviation having caused the injury. Therefore, the verdict can take one of three forms: • Not negligent. The jury finds that you were not negligent. • Negligent, but not the proximate cause of the plaintiff’s injury. In this situation, you are deemed negligent but the jury believes your negligence was not the proximate cause of the plaintiff’s injury. No damages are awarded, and the plaintiff recovers nothing. Negligent. The jury finds you negligent and the proximate cause of the plaintiff’s injury. Damages are awarded to the plaintiff. Depending on the jurisdiction, the damages may be limited to compensatory damages only, or they can include punitive damages. The latter are usually awarded only in cases of intentional wrong-doing or gross negligence. n • Contact Dr. Munsey at wfmunseydpm@gmail.com.

Table of Contents for the Digital Edition of APMA News - November/December 2011

APMA News - November/December 2011
Help Your Patients Get Up and Dance with APMA’s Diabetes Awareness Campaign
President’s Message
Contents
Special Section: Corporate Partners and Members Make a Difference
State Advocacy Case Study: NYSPMA Puts Thomson Reuters Data in the Spotlight
Reimbursement
Federal Advocacy Forum
APMAPAC Chair Report
IT Consultant
Can They Really Do That?
Members Who Know Media
Technofile
Young Voices
Small Business 101
APMA All Stars
In Short
APMA Out and About
Worthy of Note
Affiliates Corner
List of Affiliated Organizations
Insurance Advisor
New Members
Death Notices
APMAPAC Update
Annual Scientific Meeting Registration Form
Resolutions Submissions
Classified Advertising
Dates to Remember
Advertising Index
10 Questions

APMA News - November/December 2011