Q&A with Mary Flowers Part 2: Adding "sorry" to the medical lexicon
When the Illinois State Medical Society was on the verge of persuading the Illinois General Assembly to cap non-economic malpractice damages at $500,000, state Rep. Mary Flowers decided that it might be a good time to ask for a few concessions for patients.
One of those concessions was the ability of the state to post information about malpractice payments and settlements made by doctors, on a Physician Profile website. The profile page was so popular that it received, on average, between 100,000 and 150,000 hits each week, according to Susan Hofer, a spokeswoman for the state's Department of Financial & Professional Regulation.
Another was a pilot program known as "Sorry Works." It was aimed at encouraging doctors to admit when they or one of their colleagues made a mistake by, at a minimum, apologizing to the patients. The apology itself would not be admissible in court, according to the state law. By apologizing, Flowers and her supporters argued, doctors would reduce the number of lawsuits from people who simply wanted recognition from doctors and hospitals that something bad had happened.
In February, the Supreme Court of Illinois struck down the medical malpractice cap and, in the process, killed the "Sorry Works" program and the Physician Profile database.
Antidote talked with Flowers about her efforts to bring malpractice histories to light in the first part of our interview posted on Friday. The second part appears below. It has been edited for space and clarity.
Q: Your new bill will include both the Physician Profile and the ability for the agency to look at 10 years of history, the so-called pattern of practice?
A: Yes. And I also have an amendment that will restore the "Sorry Works" program.
Q: What first prompted "Sorry Works"?
A: What prompted it was the way the practice of medicine has changed in this country. A lot of doctors are no longer independent agents but instead are working for insurance companies. They have to treat patients like they are products on an assembly line. So when something bad happens, they would rather hide the mistake or just not talk about it than try to explain to the family what happened. We have these families asking, "Why did my loved one die?" They are devastated, but they can't get their questions answered because there has been this code of silence among the doctors.
Q: They are worried that anything they say will end up in court.
A: Exactly. So I said to the doctors that they have the right and really the responsibility to say to the patients, "I am sorry" and explain to the patient and the family members what may have happened.
Q: But what prevents the patients from turning around and suing the doctors based on that information? Every malpractice attorney would love to have a doctor saying they were sorry.
A: It would have no bearing on whether they would be sued or not sued. With this law, you have the right to tell the patients that you are sorry without causing you any risk in court.
Q: But saying they were sorry would help the patients understand what had happened and explaining what had happened might give the patients and their attorneys ammunition in court, right?
A: My thinking was that it would cost the hospitals and the doctors more in the long run to keep this information a secret because of the cost of the investigation and everything else. It would be easier on the family for the doctors to say I'm sorry because the hospitals and the other doctors usually know what happened. They may already know that a medical error was made, but they keep that information on a shelf somewhere and never tell the family. Just say I'm sorry and explain to the family members what has happened without adding to their suffering. This is something that started in Kentucky.
Q: I imagine that this also has been a hard sell legislatively?
A: My big fight here in Illinois has always been with Republicans who say that patients just want to sue, and we can't make it easier or better for them to sue. I've been saying that most patients don't want to sue, which is true. When something goes wrong in a hospital or with a doctor, most patients don't sue. Doctors are human, and everyone can make a mistake. Patients know that. There have been lots of medical errors. The Institute of Medicine has proven that to be a fact. More than 90,000 people die every year because of medical errors. Most of the families of those people don't sue. They just want to know what happened.
Q: You are basically saying that the "sorry" part can't be used as the basis for a lawsuit. But what prevents me from suing the doctor based on the other information that I am given when this doctor says that he is sorry?
A: Nothing. You may be suing the doctor for amputating the wrong leg or for leaving a medical device in your body. You, as a plaintiff, are not prevented from using that information. If I had done that, the trial lawyers would have had a fit on that one. The bill is mainly just encouraging the doctors to tell the truth. You took an oath to do no harm and then you did harm. Now you have to tell the truth. But there was this code of silence. Doctors knew about another doctor who was drinking at work, but they wouldn't say anything about it. We had women in the HMO era who had the wrong breast removed and then they were rushed home because the HMO didn't want to pay for them to stay in the hospital.
Q: That's a bigger issue, though, right?
A: It is a bigger issue. It's our lack of having a health care system in this country. I don't care what anybody says. They have not passed a health care bill yet. We passed an insurance bill. But we still have to put together a health care system in this country.
Q: Have you had much interest from reporters in the fact that this malpractice information wasn't available for so long and now, once again, is no longer available?
A: I haven't had anyone call me. The Tribune just did a big story about sex offenders who are doctors, and I thought someone might call me because this is the type of information that should be easy for people to find out about their doctors. No one has called. And this has been the case with a lot these patient safety issues over the years. I was fighting the HMOs on the way they were handling mammograms, and I had a reporter from the Tribune who said to me that the Tribune just didn't get the importance of the issue. She contacted me later to say that her company wouldn't pay for her to have a mammogram even though her family had history of breast cancer. So it was suddenly very clear how the way these medical decisions are made by insurance companies can have an impact on your life.
Q: And when you are going through something like that, you often don't feel like fighting, right? You are sick, or you are in the middle of treatment and don't want to make any enemies, especially not with the company that is going to be paying for your medical bills.
A: I always say, "Sick people cannot fight, and dead people cannot talk." That's why I'm fighting. I'm the oldest girl of seven siblings, and I never went to college. I tried to send all my other siblings to college, and I went to the school of hard knocks. So, after I had been in state house for a while, I got a call from the speaker saying that he was creating this new committee on healthcare. I told him that I had heard about the committee being created and knew that I was not going to be on the committee because I didn't know anything about healthcare. He said, "The purpose of this call is that I want you to chair the committee." Now, back in those days, Hilary Clinton had just been humiliated over her attempts to reform healthcare. It seemed like this big, impossible mess to solve. So I said, "Are you serious? I don't know anything about this issue or that issue or HMOs or any of this other stuff." He said, "You are going to know about it," and eventually he hung up on me.
Q: But you took the job. How did you end up learning about healthcare to the point where it is now one of your chief legislative issues?
A: Like a lot of people who learn about how healthcare works, I was introduced to it when someone in my family became ill. My brother was diagnosed with a type of cancer. We went to the doctor together, and, because I had kept my maiden name, the doctor assumed I was my brother's wife. So he just spoke freely to both of us in the room. And this is what he told my brother. He said, "You are 50 years old and have lived a good life. You should just leave this cancer alone. Don't go through any operations. It's not worth it. You will probably be able to live a few more years like this." My brother looked at me because he didn't know what to say. So I said, "Did I hear you correctly? My brother has cancer and we're not supposed to do anything about it?"
Q: What was the doctor's reasoning?
A: I can tell you what it was. My brother was in an HMO. And the doctor had already been paid for my brother's services, so the less of that money he used, the more he got to keep. So he was going to sentence my brother to death. The good news is, we didn't listen to that doctor. We had to fight, but my brother had the operation he needed. And, on May 23, my brother turned 60. We were together on July 4, and if you saw my brother you would think he looks like he is in his 40s. That experience really set me on a course because I know that I can't be in the room with every one of my constituents when they are talking to their doctors. So we have to have the right rules and guidelines in place.
Q: Is that doctor still practicing medicine?
A: He may be practicing some place, but he's not practicing in the state of Illinois. It was the likes of him that made me want to leave no stone unturned when it came down to the patient's right to know.
Related Posts:
Q&A with Mary Flowers, Part 1: Bringing medical mistakes out of the shadows
Chicago's Buried Bodies, Part 1: Illinois regulators make backgrounding doctors near-impossible
Chicago's Buried Bodies, Part 2: Millions in malpractice judgments amount to nothing in Illinois
Chicago's Buried Bodies, Part 3: The doctor discipline ball bounces to the legislative court