It is a time-honored tradition uttered on nearly every television courtroom drama; “anything you say can and will be used against you in a court of law.” And it is true. In our justice system, words spoken by a defendant can often come back to haunt them at trial. For many doctors accused of medical malpractice, this creates a catch-22 when a life-altering mistake is made. The doctor, who may be fully aware of their mistake is unable to apologize, unable to explain what happened, and most importantly, unable to take steps to work with other doctors and health care providers to ensure such mistakes are not repeated. This in turn drags out medical malpractice lawsuits, and significantly delays compensation for victims who are often now in dire need of financial assistance in order to face the new and complicated requirements of his or her changed life.
Victims of serious medical errors often face life-altering and costly situations. A patient who suffers a traumatic brain injury during surgery may need expensive around the clock care to simply assist with life’s daily activities. A medical mistake that leaves someone paralyzed may force the patient to move to a new, handicap accessible home and as well as face new realities that come with forever being confined to a wheelchair. These necessary burdens are not cheap and delays in compensation often serve to frustrate matters. This frustration only grows when patients and their families are left in the dark, unable to seek basic answers from their doctor as to how or why a life changing mistake was made.
Illinois’ western neighbor, Iowa, looks to address this problem by giving doctors a forum to speak with patients, work with healthcare providers to correct mistakes, and quickly offer compensation without fear that their words will subsequently be used against them in a lawsuit. As the Des Moines Register reported on March 2, 2015, a new proposal would allow doctors and other providers to meet with patients and their families to discuss and take responsibility for the mistake that was made. Doctors would be able to “explain how they would try to prevent such errors in the future, and they could offer compensation.” The meeting would be completely confidential; any statements, offers or admissions made by doctors could not be used in court. If patients remained unsatisfied with the result of the meeting, they could still bring a lawsuit to seek compensation for the result costs of the mistake as well as their pain and suffering.
The Iowa proposal is unique in that it was created through an unlikely partnership between the Iowa Medical Society, the largest association representing doctors in the state, and the Iowa Association for Justice, the group who represents Iowa’s trial lawyers. The Iowa Medical Society supports this action because it has the potential to cut back on the number of medical malpractice lawsuits. The Iowa Association for Justice supports the ability to quickly and efficiently receive compensation for injured patients. However, just as important is the precedent such a law could create. As Brian Galligan, president-elect of the Iowa Association for Justice notes, “We often have clients come in and say, I want to know what happened, and I want to make sure this doesn’t happen to anyone else.” Such a sentiment is something all parties should agree on.
To date, in Illinois, no such law exists in local medical malpractice cases. However, some Chicago hospitals are willing to hold informal discussions to try and reach a consensus that allows for basic answers and compensation without the time consuming burden of a lawsuit. Whether a statewide law could extend such a policy remains to be seen.