Truth or Consequences: Does Disclosure Reduce Risk Exposure?
"In our experience, plaintiff's attorneys, after first confirming the accuracy of clinical information volunteered by the facility, are willing to negotiate a settlement on the basis of calculable monetary losses rather than on the potential for large judgments that contain a punitive element," Kraman and Hamm write.
A physician and lawyer who often represents plaintiffs in medical mistake cases tells WebMD that he agrees with the policy in principle, but has never seen it carried out in real life. "I am all for, 100%, unequivocally, early investigation, early assessment, and early help to the victim of a medical error or negligent medical act," says Max Borten, MD, JD, who is with the firm of Dropkin, Perlman, Leavitt, and Rubin in Lexington, Mass. "What I have found is that once the victim of a medical error comes to a lawyer, there is a lot of anger, and the process as it is set up at the present time, the 'adversarial process,' does nothing but multiply the client's anger exponentially; the longer the process, the greater the anger."
But Borten says that although his normal practice is to send a copy of the complaint or a significant portion of it to physicians and their insurers and to ask for a face-to-face discussion before filing the case in court, the response from defendants has been uniformly negative, because physicians are usually reluctant to admit that they have erred, and insurers are often unwilling to settle, he tells WebMD.
A legal authority who has extensively studied the issue agrees that from the provider's standpoint, telling the truth is better than lying, but doctors don't always know when they've committed errors, and may therefore be on the defensive when accused of wrong-doing.
"To tell the patients presupposes that you are recognizing all the events," Edward P. Richards, JD, MPH, professor at University of Missouri-Kansas City School of Law, tells WebMD. "I don't believe that very many doctors consciously cover up bad things they do to patients. Most doctors [who get sued] are not aware they have done things to patients. ... The reality is that you only find this kind of thing through in-depth, post-incident, retrospective chart review."