Democrats & Liberals Archives

Sorry Works

A big battle is taking place between Senate Republicans and Democrats about malpractice insurance. Republicans, fighting for insurance and health companies, want to place a cap on awards for noneconomic damages. Democrats, fighting for the average health consumer and for trial lawyers, do not want any caps. Sorry Works! is a new idea to replace our current adversarial legal system with a non-fault system where all those concerned get together to apologize for the mishap, to openly negotiate fair compensation and to learn from mistakes made.

President George W. Bush has pushed for caps in damage awards for a long time. He is concened about health insurance premiums being high and about "frivolous lawsuits" that make them higher. He also thinks the current system causes doctors to waste time on defensive medicine. His bill calling for caps on noneconomic damages was passed in the House and is now being debated in the Senate.

Recently, I have read material that leads me to believe that both Republicans and Democrats are wrong. Perhaps the entire malpractice legal system is not worth saving:

  • GROSS INEFFICIENCY - Dr. Robert A. Berenson, writing in The New Republic of October 10, 2005, says:

    "If lawsuites inspired better medicine, the current system's inefficiency - 60 percent of its costs support lawyers, expert witnesses, and court operation rather than compensating injured patients - might be acceptable. But, while malpractice insurance costs and payouts keep rising, health care does not get appreciably safer."

  • SECRECY - Most cases - over 90% - are settled out of court. In almost every instance, the records are sealed and other doctors cannot learn from past mistakes of others

  • CAPS WILL NOT WORK - Again I quote Dr. Berenson:

    "By making the most lucrative cases worth less, these caps somewhat reduce the number of cases that plaintiffs' attorneys will take. But the cap's effect will be to weed out both the non-meritorious cases that the president wants to eliminate as well as meritorious cases for individuals who cannot claim substantial economic harm from lost wages but have nevertheless suffered very real loss - of fertility, for instance - due to negligence."

  • SOME DEFENSIVE MEDICINE REDUCES COST - It may prevent big and expensive health problems in the future
A new organization called Sorry Works! Coalition has emerged in Illinois. It is advocating an approach called Sorry Works! because

"The first words out of the mouth of a doctor who has made a mistake in treating a patient should be: 'I'm sorry.'"

After the apology, everything about the case is discussed with other health practitioners and the family involved, and the doctor offers compensation that is openly negotiated.

This is the basic idea. There are no adversaries. No money is wasted on lawyers and expert witnesses. The purpose of the meeting is to learn and assure satisfaction. Sorry Works! is a cooperative idea that is bound to help our entire health care system.

Senator Hillary Rodham Clinton and Senator Barack Obama have teamed up to introduce a Sorry Works! bill. Check it out here. Then tell your senator you like this new idea.

As Dr. Berenson says:

"Instead of trying to wall off the malpractice system from physicians' and hospitals' important disclosures about errors, it is time to change the legal system so that candid disclosure of errors is routinely provided, not just permitted under particular circumstances. And, because full candor would tilt the legal balance of power, an entirely different system outside of adversarial courtrooms must be developed."
Posted by Paul Siegel at October 7, 2005 6:08 PM