Disclosure & Offer at Twenty-Five: Time to Adopt Policies to Promote Fairly Negotiated Compensation
Suffolk University Law Review ONLINE, Vol. 1, p. 1, 2013
5 Pages Posted: 28 Jan 2013 Last revised: 14 Feb 2013
Date Written: February 2013
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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