TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Thursday, January 31, 2013

Teninbaum & Kraman on Medical Apologies and Compensation

Gabe Teninbaum (Suffolk) & Steve Kraman (University of Kentucky Department of Internal Medicine) have posted to SSRN Disclosure & Offer at Twenty Five:  Time to Adopt Policies to Promote Fairly Negotiated Compensation.  The abstract provides:

In 1987, this article’s co-author (Dr. Kraman), with other hospital staff at the Lexington, Kentucky VA Medical Center, created the risk management method now known as "disclosure & offer." The Lexington VA's guiding principal was that patients injured by medical errors should be made whole without the need for litigation. Their process included advising patients to seek counsel and then negotiating fair compensation with the attorneys/patients. After 10 years, the Lexington VA group published a study revealing the success of their program in fairly compensating patients while reducing litigation costs.

Today, disclosure & offer programs are a national phenomenon. Most aspects of the VA model have been adopted by facilities that employ their own disclosure programs. Yet, the newer generation of programs appear to have adopted a more self-serving approach when it comes to discussing compensation with patients (typically not advising patients to seek legal counsel; nor putting safeguards in place to assure patients understand their legal rights and financial needs resulting from their injury before negotiating with risk managers). This article argues that negotiating with unrepresented patients creates a conflict of interests and recommends practices to remedy it for facilities engaging in "disclosure & offer."


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