Nobody's Fault But My Own, Part Two

I first wrote here about the novel idea that doctors could curb medical malpractice lawsuits by apologizing for their mistakes. The idea is being popularized by Dr. Steve Kraman, who co-directed a "Sorry Works" program for sixteen years at a hospital in Kentucky.

Last week, Dr. Kraman explained the program in an Op-Ed piece for the St. Louis Post-Dispatch titled "Medical Malpractice: When all else fails, 'sorry' works wonders." A quote:

We treated victims of medical errors as we would want to be treated if we found ourselves in their situation. The patients and their families were dealt with decently and with honesty and reason, and they responded in kind.

Cases were settled within months instead of years, trials became rare (about one every five years) and our liability expenses were less than average among similar Veterans Affairs hospitals.

I also received good news last week in an e-mail from ATLA: "[T]he U.S. Senate today said a resounding NO to considering a bill that would cap damages, limit contingent fees, and inflict a sweeping range of other tort restrictions in medical malpractice cases, and in product liability cases involving drugs and medical devices . . . Needing 60 votes to end a filibuster and proceed to the consideration of S.2207, proponents garnered only 49 votes, short of even a bare Senate majority." For more about the Senate bill, see "Republicans fail again to bring up medical malpractice bill," by Jesse J. Holland of the Associated Press (link via SFGate.com).

Comments

[Ted]

You're just repeating the St. Louis paper's mistake, but it's "Kraman".

A number of malpractice insurers have implemented the Kraman/JCAHO standards, or similar ones. Indeed, if Kraman is right, insurance companies have every reason to mandate Kraman's apology rules: they could make huge profits. So why are the insurance companies acting against their best interests by failing to impose Kraman standards? The answer, perhaps, is that Kraman's program isn't the magic bullet he sells it to be.

It's worth noting that Kraman has claimed elsewhere that about half of the malpractice cases his hospital settles "represent illegitimate or nuisance claims."

I'd love to see Kraman's results duplicated. Right now, all we have is a single study for a single hospital for 1990-1996 that showed that that hospital, for that time frame, ranked 8th out of 36 for total payouts in claims -- and, even aside from the question of geographic differences, it's not clear that, if legal expenses were included, that Kraman's hospital would not have ranked worse--only five of the 36 hospitals had more claims against them than his hospital, and four of those hospitals had significantly higher workloads. Variance is also an issue: a single additional $1 million payout would have dropped Kraman's facility to a below-average ranking.

And isn't it interesting that Kraman and VFU's proposal for Illinois establishes de facto caps for participating hospitals, albeit caps subsidized directly by taxpayers?

[Evan]

Thanks for pointing out the spelling error, which I corrected in the post.

[Steve Kraman]

I just stumbled on this. Interesting comments and all true but one. I don't know where you heard that we settled "illegitimate or nuisance claims." We had an iron-clad rule to never do that and in fact didn't. I have stated that in many forums and in print. If you can find any statement in writing that alleges otherwise, I'd like to know about it. Regards.

Steve Kraman, MD

[Evan]

Dr. Kraman: I think you're taking issue with Ted Frank's comment. Ted can be reached at Overlawyered.com.

[Steve Kraman]

Sorry Evan. I'm new to blogs and assumed that they work like list serves. That can't be his entire e-mail address. Is it ted.frank@overlawyered.com or something else?

Steve

[Evan]

I think Ted's e-mail address is tedfrank@overlawyered.com (I got that off the overlawyered.com site).

[Ted]

As I e-mailed Dr. Kraman, I got the quote from this article.

"We decided to find a proactive way of investigating these cases," explains Dr. Steve Kraman, chief of staff at the VA Medical Center. A committee was soon formed. Its first test came within a few months, after it determined a patient had died from a medical error. Dr. Kraman says all the facts were disclosed to the patient's family and the case was settled within several months for a "reasonable" amount.

Since then, the medical center settles about 14 cases each year. Roughly 5 to 10 of those cases represent illegitimate or nuisance claims.

If I've repeated a reporter's error, I apologize.

[Steve Kraman]

I've already sent this reply to Ted by e-mail but will repeat it here for anyone else who is interested. The reporter's story contains a misunderstanding of what I really said (although I don't remember the interview). This is what really happens: Our total claims from 1987 through 2003 averaged 14 per year. Some of these (4 or 5 or so, it varies from year-to-year) are legitimate and primarily result from a disclosure. Those are paid. The remainder are found to be misunderstandings or bad outcomes but without a violation of the standard of care. Although we maintain contact with the plaintiffs and try to explain the facts to them and their attorneys, we do not offer any compensation. The key to the misunderstanding in the article is that we calculate the per-claim amount by dividing the total payments for the year by the TOTAL number of claims (most of which are not paid). We do this because that is how the VA office of General Counsel does it nationally and we had to compare our data with the rest of the VA. It is confusing and makes comparisons with the private sector difficult. Unfortunately, the media's need for news snippets makes this concept hard to convey. Usually I don't try. Evidently, with this reporter, I did. Should have exercized my right to remain silent.

I hope that this clears this issue up. If not, I'm happy to answer questions.

Steve Kraman, MD

[Dori]

What Dr. Kraman's program would produce, I would think, is less human suffering on the part of the families who now don't have to fight stonewalling by the hospital. It's important that patients (if still alive) and families be treated with compassion and respect and told the truth without having to go through more suffering. I think this could even come under the 'first do no harm' clause.