The Disclosure Movement in Medical Accident Cases

There was an interesting article in today’s New York Times entitled, “Doctors are Beginning to Say ‘I’m sorry’ long before ‘I’ll see you in Court’ which I’ve copied below. Although I’d heard of this “movement” on several occasions, I was struck by two pieces in the article: the first, was that the Sunday New York Times chose to feature it on the first page, as though it was news; and the second was that Presidential rivals, Hillary Clinton and Barack Obama co-sponsored a bill which would have legislated that such apologies are inadmissible in court back in 2005.

One of the key principles which mediators emphasize in any hearing which includes an apology is the assurance of confidentiality. Apologizing will not become an admission of culpability if it’s done in the context of a mediation. What researchers have found is that in most instances, an apology and explanation of the circumstance of the medical accidents reported resulted in the patient or his/her family deciding not to pursue the matter in litigation. I loved that they’ve given a name to the practice, which is a departure from the old “defend and deny”: “the disclosure movement”. Contrary to popular press, what the study reveals is that most patients are earnestly concerned about hospital practices that may cause injury in subsequent procedures, and in the explanation, more than the huge damage claim. What’s more, they want it soon after the incident, and an offer to fix or repair, rather than subject both sides to protracted litigation aimed at concealing the facts and minimizing the ultimate expense. Interesting stuff, this disclosure movement.

                       

Jan Frankel Schau

Attorney Jan Frankel Schau is a highly skilled neutral, engaged in full-time dispute resolution. Following a successful career spanning two decades in litigation, she has mediated over 700 cases for satisfied clients. Ms. Schau understands the nuances of trial and settlement practice as well as client relations and balancing the… MORE >