Physicians typically recall, with stunning clarity, the moment a patient's treatment went wrong. Following an adverse event, physicians often are tormented by competing desires to apologize and instincts to forge ahead without acknowledgement. A patient's decision to file a malpractice action may be triggered by the physician's response to a problem − or lack thereof.
The Washington Post highlighted contrasting tales of medical errors in which two patients suffered devastating consequences during surgery. Frustrated by a "white wall of silence" preventing her health care providers from articulating more than "'things didn't go well,'" the first patient desperately committed to finding truth at all costs. In stark contrast, following his surgeon's immediate explanation and apology for an error that rendered the second patient quadriplegic, the patient engaged in productive discussions with risk managers. The patient's needs were met and his attorneys negotiated a confidential settlement without litigation.
Benefits of Apologies
Apologies may decrease feelings of frustration and anger
that drive some plaintiffs to file lawsuits. A study published in
the Journal of Patient Safety and Risk
Management found that hospital staff and doctors willing
to discuss, apologize for and resolve adverse medical events
through a "collaborative communication resolution
program" experienced a significant decrease in the filing of
legal claims, defense costs, liability costs and time required to
close cases. In 65% of the reported adverse events, no medical
errors occurred. Events with medical errors were resolved by
apology alone in 43% of the cases. Similar programs have cut the
number of malpractice lawsuits and yielded dramatic litigation cost
savings. In November 2017, consistent with studies demonstrating
that resolution programs provide "an effective way to learn
from medical errors and near misses, enhance patient safety, and
improve the liability system," the American Medical Association expressed support
for this pre-litigation option.
The practice of defensive medicine may create a perception of indifference as patients grapple with the impact of adverse outcomes. The "'deny and defend' model" has raised concerns due to expense, lack of transparency and error perpetuation. Modern programs aim to avoid litigation through prompt error disclosure, apology and compensation. Benefits of disclosure may include increased transparency, medical cultures supportive of clinicians facing adverse events, and enhanced patient safety due to discussions driven by acknowledgement and examination of errors.
"Apology statutes," enacted in the majority of states, evidence legislative efforts to reduce medical liability, malpractice actions and related litigation expenses. Many states have changed laws "to exclude expressions of sympathy, condolences or apologies from being used against medical professionals in court." Courts have addressed the admissibility of physicians' statements, pursuant to "I'm Sorry" statutes, through the interpretation of statutory language or a focus on distinctions between "apologies" and "admissions of fault or liability." See Stewart v. Vivian, 151 Ohio St. 3d 574 (2017); DeBussy v. Graybeal, 2016 Del. Super. LEXIS 616; Honey v. Bayhealth Med. Ctr., Inc., 2015 Del. Super. LEXIS 28; Strout v. Cent. Me. Med. Ctr., 2014 ME 77; and Lawrence v. Mountain Star Healthcare, 2014 UT App. 40.
Advice of Counsel
While physicians may reduce malpractice litigation through
improved patient communication, health care
providers should seek advice from counsel as to best practices
regarding discussions of adverse outcomes before such situations
arise. Alternatively, a physician may apologize for the
patient's disappointment with an outcome and commit to
investigating in an effort to share and address the patient's
concerns. Of course, any such commitment must be fulfilled to avoid
exacerbating the problem and creating further resentment and
dissatisfaction.
Studies of communication and resolution programs suggest that the risk of malpractice litigation and related costs may be mitigated by a health care provider's apology to the patient or the patient's representative(s) following a medical error or an adverse outcome. Such communications, however, should take into account jurisdictional variations with respect to the existence, language and scope of apology laws.
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