When medical apologies are fodder for suits

Destinee Lotoya Blake arrived in this world by cesarean section after doctors determined the umbilical cord was wrapped around her neck. At 29 weeks, she was small, weighing just 1 pound, 9 ounces.

Six days later, on March 1, 2010, Destinee died in the neonatal intensive-care unit at Abington Memorial Hospital. Her path was perilous, but her death was preventable.

Within a week, John J. Kelly, Abington's top doctor, invited Destinee's parents into a conference room. He told them everything that happened, what had gone wrong. Others involved in Destinee's care joined him. All expressed their sorrow.

Within a year, the couple filed suit, citing the meeting.

Should the essence of that meeting - the doctors' explanations and apologies - be confidential? Or should lawyers be able to query doctors about it on the witness stand?

This is a relatively new, controversial, and unresolved question in Pennsylvania - and at the heart of two bills stalled in the legislature.

These meetings represent one of the most significant trends in medicine today. Regulators are increasingly encouraging hospitals and doctors nationwide to hold such talks with families, trying to change the age-old culture of secrecy in medicine. But should those admissions be fair game at trial?

According to court records and people familiar with the case, this is what went wrong in Destinee's care:

The newborn needed to be fed intravenously. Her doctor threaded a catheter no thicker than a human hair through her veins, intending it to stop where her biggest vein reached the heart. The nutritional fluid was so concentrated that it needed the largest possible vein and maximum amount of blood to dissolve safely into the bloodstream.

Her heart was the size of an adult thumb, and the catheter went a few millimeters too far, entering the heart. In the vein, the blood flow keeps the catheter away from the vessel wall. But inside the heart, blood doesn't move as rapidly, and her catheter rested against a heart wall.

The fluid actually seeped through the wall, into the sac surrounding her heart. That sac began to fill with fluid - a teaspoonful, but enough to stop the heart.

A chest X-ray is always taken to confirm proper placement. But in Destinee's case, the X-ray wasn't read in time.

When processing the X-ray, the technician clicked on the wrong baby's name, realized it, but when she clicked again on the correct name, a drop-down screen that normally auto-populates with data had to be filled in manually, which the technician wasn't accustomed to doing.

She confused the birth date with the film date, since they were close together. As a result the X-ray wasn't seen in a timely manner or in context.

As the meeting ended, doctors shook the hand of Destinee's father, Ricardo Blake, but he was still angry.

"I felt like rather than going to a meeting to have the explanation," he said recently, "I'd rather have the child alive."

Nearly a year later, in February 2011, he and his wife, Erica Allen-Blake, both of Philadelphia, filed suit. The meeting with Kelly formed a fundamental part of the suit:

"At the meeting the defendants expressed regret over Destinee's death and described the course of treatment provided to Destinee, and admitted the death was caused by the hospital."

The suit went on about the meeting for eight paragraphs.

The hospital's lawyers objected. They maintained in court papers that this meeting was confidential by law, and that nothing about this conversation could be used in court.

Many doctors feel that an apology - accepting responsibility for errors, telling what went wrong - is a dramatic advance and the right thing to do since doctors have long been loath to admit mistakes.

But they say the trend will continue only if doctors know they can speak openly, without fear of being bludgeoned in a lawsuit.

"Isn't that a little like testifying against yourself?" asked Jim Redmond, head of legislative affairs for the Hospital Association of Pennsylvania.

Trial lawyers disagree. They say doctors and hospitals either have the courage of their convictions - telling the truth, accepting the consequences - or they don't.

"Sit around and sing 'Kumbaya' as long as nobody faces any consequences? And we're supposed to be OK with that? Come on," said Jonathan M. Cohen, the lawyer for Destinee's parents.

Cohen characterized the medical community's position as this: "We will tell you the truth, but only if it doesn't hurt us."

Trial lawyers also argue that evidence of fault and error sometimes isn't in a medical record, that the talk between doctor and patient may be the only evidence of it.

There is much evidence that expressions of regret by doctors and hospitals lead to fewer malpractice suits and lower payouts, said Williamsport attorney Cliff Reiders, a past president of the Pennsylvania Trial Lawyers Association.

Studies show, he and others say, that what families really want is an apology and fair compensation when an error occurs. More families in such situations are willing to go to mediation in lieu of trial.

This has been the case in Pennsylvania, he said.

In 2002 when Pennsylvania passed the Medical Care Availability and Reduction of Error Act (MCARE), the state averaged 2,800 malpractice cases annually. For many reasons, that's now down to 1,500 a year, Reiders said.

He predicted that even the Destinee Blake case would settle - and it did, last month.

The terms remain confidential. The issue of whether the hospital's apology could be used in court wasn't resolved.

But the issue is alive in Harrisburg. Bills that originated in the state House and Senate are stalled in the Senate Judiciary Committee, headed by Stewart J. Greenleaf (R., Montgomery-Bucks).

The nearly identical bills (House 495 and Senate 565) would allow a doctor to apologize to a patient, and prohibit this apology from being used in court by the family. Greenleaf has no problem with that.

But the bills also say that explanations of fault - beyond apology - would be protected speech as well. Greenleaf says this is going too far.

Greenleaf feels some allowance for expressing fault must be included. He wants a carefully worded bill, a compromise between the medical camp and trial lawyers. But neither side will budge, he said.

"You can say anything you want and it's not admissible, that's not a good piece of legislation," he said. "May serve one person's needs but not everyone's needs. Doesn't serve that family's needs. Right now there's no guidelines. There should be."

Kelly, Abington's top doctor, would not talk about the Blake case. Neither would hospital lawyers. But in interviews in 2009 and early 2010, well before Destinee Lotoya Blake lived and died, Kelly talked about his top priority at Abington: preventing harm.

"I'm always worried," Kelly said. "Worrying is an important virtue when you have 500 patients in the hospital, most of whom have significant illnesses. Every patient is at some degree of risk of harm. My goal is to have no harm come to a patient.

"Fundamentally we're a human enterprise," Kelly added. "We're a building with 5,000 people going through a million processes to take care of 500 patients a day, and error is inherent" in the system.

"None of us likes to believe these things happen in our hospital," Kelly said. "And any hospital that says 'it doesn't happen here' is not being honest."

In the same conversation, Kelly said he also believed errors and harm caused by a hospital should be disclosed to families immediately.

"There can never be trust without transparency," he said.

Last week, after the case was settled, Kelly added that he felt the conversations must be confidential, a "very human process we want to encourage, not extinguish."

He knows such disclosures could lead to lawsuits.

"But I am confident that the long-term and deep trust that will be established in the community for the hospital and its professionals will be ultimately a much greater strength."