John Kassel participated in a panel discussion August 27 at the SC Hospital Association conference in Columbia discussing transparency issues and medical malpractice. Kassel was the sole plaintiff’s lawyer at a meeting of hospital administrators, risk managers, claims adjusters and defense lawyers.

Kassel presented the following viewpoint during the panel discussion:

The notion of transparency involves allowing for open and frank discussions within the hospital among personnel in order to investigate, without blame, why bad outcomes occurred and how they could have been prevented. The goal is to promote patient safety. If doctors, nurses and staff can talk freely without fear of discipline, then a better understanding of what happened can be achieved. That will enable systems to be designed to avoid repeat instances of the conduct that led to the bad outcomes.

Transparency also involves frank discussions outside the hospital with patients and their families. It is this strategy which is often resisted by hospital administrators and defense counsel when medical malpractice is alleged or suspected to have occurred. The typical response to an injury occurring in the hospital is to withhold information from patients and families. The norm is a deny and defend strategy.

Transparency seeks to include patients and families in an open and honest discussion of what happened and why. Not every bad outcome is a source of liability. Liability arises only if the bad outcome resulted from unreasonable conduct. Some hospitals engage patients and families in discussions, explaining what happened to cause the injury, why the incident occurred, and whether the injury was preventable or not. The idea is that fewer claims and lawsuits would arise if the hospital and its personnel engaged in an open discussion explaining why the bad outcome occurred and that it was not the result of unreasonable action. Injuries arising from unreasonable conduct would be the subject of compensation.

Patients and families often lament not having information about what happened  during a hospital stay. Transparency is aimed at addressing this problem, defending appropriate claims, and paying meritorious claims. While this approach has been utilized in other states, it is not practiced in South Carolina.

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