Doctors could admit to mistakes without facing liability in court under proposed legislation

Should doctors have to testify in court when they admit to medical malpractice?

A malfunctioning medical instrument pierced Jack Gentry's spinal cord during surgery in 2013, leaving him paralyzed.

But the retired police officer and Fallston resident said he feels no ill will toward the doctor or MedStar Union Memorial Hospital in Baltimore, where the procedure took place. That's in large part because the physician immediately apologized, and the hospital took care of Gentry's medical bills and worked out a compensation plan for long-term care without going to court.

Wrestling with rising malpractice costs, hospital administrators want to see more cases worked out in the same manner and are pushing legislation in the General Assembly that they say would make it easier for doctors to acknowledge when a procedure or surgery goes wrong without that acknowledgment becoming admissible in court.

They argue it would put more compensation in the hands of patients, rather than lawyers, and enable hospitals to develop treatment plans more quickly for patients.

But a trial lawyers organization said such changes would leave patients in a vulnerable position, and call the proposal an attempt to keep such cases out of court and away from juries.

Patients would be asked to agree to the arrangement while they are recovering and are, perhaps, not in a position to make the best decisions, said the Maryland Association for Justice, which represents the state's trial lawyers. Patients also might not be familiar with their legal rights or what to ask for in terms of compensation.

"I am a malpractice attorney, and a lot of my clients are in financial straits and emotional straits when they come to me," said Wayne Willoughby, the group's immediate past president. "Their first impression would be to jump at the first offer. I have to explain to them that they need to think about things like compensation for long-term health care."

Current law provides some of the protections hospitals are seeking. If a doctor expresses regret or apologizes, that is not admissible as evidence in court. However, if a doctor acknowledges he or she did something wrong as part of the apology, that could be brought up in a malpractice case.

"If you say you did it, it can be used against you," said Larry Smith, vice president of risk management for MedStar Health. Doctors "are afraid of what it will do to their own personal careers. What it will do to their license."

The proposed law would give doctors the freedom to both apologize and acknowledge a mistake without fear of the admission being used in court.

The bills are sponsored by Sen. Robert Cassilly, a Harford County Republican, and Del. Kathleen Dumais, a Montgomery County Democrat. Last year, similar legislation passed the House, but didn't make it out of a Senate committee.

Under the legislation, hospitals would have to create what is called a "patient safety and early intervention program" to treat harmed patients.

The plan would include a timely investigation of a mistake to determine the extent of harm and whether care deviated from acceptable standards. Hospitals would have to disclose results of the investigation to patients and their families, and apologize for what happened. Hospitals also would have to advise patients of their right to legal representation.

The proposed law comes as hospitals have complained about increased malpractice costs. In 2015, Maryland ranked ninth in the nation in per-capita medical malpractice payouts, according to the Maryland Hospital Association, paying out more than $109 million. Maryland was one of only nine states with more than $100 million in payouts, the hospital association said.

Trial attorneys say hospitals wouldn't face these suits if they weren't committing errors.

"There is no one else in the legal system who is afforded the protection to be able to make the admission of liability and not have that liability used against them in trial," Willoughby said.

Willoughby said hospitals shouldn't need legislation to provide patients with a quick plan for care after a mistake is made.

He also said he is skeptical that hospitals always would act in the best interest of the patient. The hospitals might act on the most egregious and obvious cases, he said, but shortchange patients when cases are less clear-cut.

"What this bill does is it enables them to hoodwink the patient," Willoughby said.

The hospitals say that being transparent with patients will help ease some of skepticism and bad feelings that might arise if they were not upfront.

"Despite the expertise and dedication of physicians and hospitals, there are rare instances where medical errors occur, even when the highest quality of care is provided," said Jania Matthews, a spokeswoman with Johns Hopkins Medicine. "When these medical errors result in unfortunate adverse clinical events, it is critical that patients receive information as soon as possible. Such transparency allows patients and their families to make informed decisions about their care and begin the rehabilitation and treatment processes as quickly as possible."

An executive with LifeBridge Health, which operates four hospitals, including Sinai Hospital of Baltimore, said the proposal would allow uninhibited communication between patients and health care providers and improve patient safety. She also said it would allow for compensation without protracted and expensive litigation.

"We believe this legislation is a step toward encouraging better coordination between hospitals and patients in achieving safety, obtaining answers and providing resolution sooner for patients and their families," said Martha Nathanson, vice president of government relations and community development at LifeBridge.

MedStar said open dialogue with Gentry allowed the hospital to focus on his long-term care. MedStar paid for the family's expenses, including long-term rehabilitation that has enabled him to use his hands again. It also worked out a compensation package that would cover Gentry's care for life. Both sides agreed not to release the agreement's financial details.

Gentry said he knew there was the possibility of complications when he went in for surgery for two bulging disks in his neck but never really believed those complications would occur. He and wife, Teresa, said the compassion and honesty of the doctor helped make an emotional situation less fraught.

The Gentrys are now part of MedStar's patient and family advisory council for quality and safety, which seeks more collaboration between the hospital and patients who experience adverse events.

"MedStar did everything they could to make the situation better," he said.

amcdaniels@baltsun.com

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