A neurogsurgeon at Boston's Tufts Medical Center apparently thought saying sorry to the patient's family after a freak and fatal medical error was the humane thing to do, but attorneys hired by the hospital's malpractice insurer evidently don't agree.

Last November, one day after a 74-year-old patient at Tufts awoke from surgery with severe pain and seizures after what should have been a fairly routine implantable pain pump procedure, neurosurgeon Steven Hwang, MD, admitted to her 2 sons that he'd made a tragic mistake. "We gave her the wrong dye," he reportedly said. The woman died that day.

Dr. Hwang admitted the mistake as soon as he became aware, but in letters to the woman's sons, Tufts' malpractice insurer attorneys denied any negligence on the part of Dr. Hwang or any other surgeons or pharmacists involved in the case, according to a report in the Boston Globe.

"A mistake was admitted, and now they're saying it's not their fault," Stephen Carcerano, one of the sons, told the Globe. Stephen and Michael Carcerano are suing the hospital, along with 12 pharmacists, nurses and surgeons. The insurer has made a settlement offer, says the Globe, citing the lawyer representing the brothers, but the case is still pending.

This legal drama is playing out against 2 backdrops.

• 6 other Massachusetts hospitals have started a pilot program to offer patients harmed by medical errors a prompt apology and early financial settlements. It's thought that such a program could increase patient safety and curb costly lawsuits.
• A law passed in 2012 in Massachusetts requires a 6-month cooling-off period before patients can sue. The idea is to promote settlement talks in the interim. The law also lets providers apologize for errors without having the apologies used against them in court.

In the pain pump incident at Tufts, Dr. Hwang asked a nurse for a surgical dye called Omnipaque to test the location of tubing that had been threaded into the patient's spine. But the nurse was given MD-76, an intravenous dye, by the pharmacist, who told her the OR pharmacy didn't carry Omnipaque. "This is what we have," the nurse told Dr. Hwang as she handed him the MD-76, which comes with a warning label — "not for intrathecal use."

Dr. Hwang did not immediately respond to requests for comment by Outpatient Surgery. Tufts released the following statement: "The Massachusetts legislature passed medical malpractice reform to allow providers, patients and families to reflect on and evaluate situations involving unexpected medical outcomes instead of rushing to court. This is consistent with Tufts Medical Center's longstanding policy and practice of positive and collaborative relationships with patients and families. We cannot publicly discuss the legal issues of a specific case."

Jim Burger