The Law: Apology Accepted?

Daniel O’Connell, a clinical psychologist who teaches both medical residents and practicing physicians about disclosing adverse medical outcomes, likens his physician students to consumers who’ve gotten a bum deal. He asks them to put themselves in the position of an individual whose car engine has just blown up due to an error caused by the mechanic who previously performed routine maintenance on the car. Then O’Connell asks his students, “When you are in this situation with a business - and doctors, you are a business - that causes harm to you, what do you expect the business to do?”

Most say they would expect the dealership to own up to its culpability. But many add they would be concerned that the mechanic would use his superior knowledge of the car to avoid the financial repercussions of his mistake.

“He knows about engines and I don’t,” O’Connell hears his students say, “and he’ll come back and make up some cock and bull story about the fact that I was probably using the wrong oil in my BMW, and that I caused the problem, or that it couldn’t be helped.”

O’Connell has made his point and his students know it. What they expect from their car mechanics their patients expect from them - full disclosure. But, like the hypothetical car mechanic, “Their urge to self-preservation sometimes makes them think about deception as a way out of the problem,” says O’Connell. And that, experts agree, is the worst thing you can do if you are aware that you’ve committed a medical error. It puts at risk your very livelihood - your license to practice - and that should outweigh any fear of a lawsuit.

O’Connell uses this metaphor when teaching a program he developed titled, “Disclosing Unanticipated Medical Outcomes” - a 90-minute course funded by large healthcare systems and medical malpractice insurance carriers. More than 8,000 physicians were trained by O’Connell this summer. He says he’s been instrumental in training 30,000 doctors in the United States and Canada thus far. O’Connell’s bottom line?

“The physician is required to give the patient an accurate understanding of what happened under their care in all circumstances.”

Yes, times have changed.

A whole new world

“The impetus for disclosure is very recent,” notes Fay Rozovsky, president of a risk management consulting firm. She says that six years after the Joint Commission on Accreditation of Healthcare Organizations began requiring hospitals to disclose medical errors, the movement toward full disclosure has “gained a groundswell,” largely driven by people who’ve had adverse outcomes, legislators, and some business associations. “All are pushing for ‘transparency,’” says Rozovsky, “that is, the need to talk openly and honestly.”

The AMA joined the Joint Commission in 2003 when it issued a report that states, “When patient harm has been caused by an error, physicians should offer a general explanation regarding the nature of the error and the measures being taken to prevent similar occurrences in the future. Such communication is fundamental to the trust that underlies that patient-physician relationship, and may help reduce the risk of liability.”

Several large healthcare systems claim to have proven the latter statement to be true. The University of Michigan Hospital System in Ann Arbor says its full disclosure program has cut its number of pending lawsuits in half, and the system’s legal costs have gone down $2 million annually.

Similarly, the University of Illinois at Chicago has adopted a comprehensive error disclosure program that it says has resulted in only one malpractice suit out of the 40 medical errors the hospital acknowledged one year into the program. O’Connell also cites the experience of the Lexington Veterans Affairs Medical Center, which he says has had a disclosure program in place since 1987. “They actually pay more claims than other vet’s hospitals,” says O’Connell, “but the amount they pay is about a sixth of what other hospitals pay on a per-claim basis, and they’ve had three trials in 20 years. So their view is, let’s be fair with everybody whom our error has hurt, and we think we’ll be better off financially by doing that than by denying and defending, which they’ve done in the past.”

Others dispute the effectiveness of full disclosure in discouraging lawsuits. Attorney Richard Kidwell, associate counsel and director of risk management at the University of Pittsburgh Medical Center, says there aren’t enough conclusive studies to support this claim. He points to a recent paper published in the healthcare policy journal Health Affairs that concludes that full disclosure of medical errors, while advisable from an ethical standpoint, is “likely to amplify litigation.”

It’s unclear whether physicians who apologize are less likely to be sued. “Both schools [of thought] that argue that apologies hurt or help a doctor’s chances of being sued have validity to their arguments in some ways,” Rozovsky says.

What is more important than whether you disclose an error (which she says you undoubtedly should), is how you disclose it. “Unless someone knows how to talk to a patient and a family about what happened, it could actually blow up rather than help,” Rozovsky says. “That’s where getting assistance and developing an apology policy for a practice is very, very important. How we say things, where we say things, and to whom we say things all make a difference.”

It’s all in the delivery

David Nash, a physician and chair of the Department of Health Policy at Jefferson Medical College in Philadelphia, confidently maintains that the current body of research on the subject conclusively proves that disclosure is always the best policy. Why? “The No.1 cause of medical liability is poor communication, the No. 2 cause is poor communication, and the No. 3 cause is poor communication,” he says. “So in my view and based on the research and published evidence, you can’t go wrong by telling patients what’s going on.”

But how you frame the disclosure and when you do so weigh heavily on how a patient will absorb the information. Nash recommends that physicians inform patients of any medical errors of which they become aware “without delay.” That said, he also advises physicians to call their malpractice carrier to make them aware of the situation and get advice on how best to approach the patient. He says being straightforward with the patient and ensuring him that mechanisms are being put into place to prevent such an error from happening again are very important elements to the conversation many physicians dread having to initiate. Nash maintains that doing so means a claim is less likely to be filed: “[Patients are] almost willing to tolerate a bad outcome if there is an apology and an explanation as to what’s being done next time in order to prevent the same mistake from occurring.”

You should also take detailed notes on the conversation - documenting the content of the conversation, the patient’s reaction, witnesses present, etc. - and then keep those notes in the patient’s file.

Kidwell agrees that medical errors should be disclosed to the patients they affect “as soon as possible.” However, if the situation is not dire, he also recommends calling an attorney - and not just any attorney, but one who is a professional liability lawyer. Your personal attorney who helped you set up your practice and gives you financial advice won’t be much help in this case.

Also call your malpractice carrier, which in most cases will work with you and provide advice regarding disclosure. Many physicians shrink from making such a call in fear that their premiums will automatically skyrocket, but Kidwell and Rozovsky maintain otherwise. “Malpractice carriers are not going to ding doctors in terms of a higher malpractice premium if they call to get advice on how to handle a medical error,” says Rozovsky. “The fact you call in means the person at the end of the phone can provide you with guidance. Your insurance carrier is not your nemesis. They can offer advice, peer-to-peer counseling, and other resources.”

Kidwell advises physicians to talk to patients in a private setting where they cannot be overheard and to take special care to physically put themselves on the same level as the patient with no obstacles (such as a desk) between them. The apology should be forthright and followed by an explanation of exactly what happened.

Rozovsky adds that simply giving a patient an “information dump” will inevitably hinder rather than help the situation. She says this is often the method physicians unschooled in admitting medical errors adopt, leaving patients overwhelmed, confused, and without a plan in place to help them. “That’s where doctors can get into trouble,” she says. And, she adds, fear of litigation should not be a physician’s biggest concern. “I know that many doctors are afraid of being sued for disclosure,” says Rozovsky. “I worry much more that if they don’t have a frank and candid discussion, that that patient is going to spin around and go after their license to practice for unprofessional conduct. And I think that’s the worst risk fear they ought to have.”

Rozovsky recommends arming yourself with a “script” before initiating the conversation. This does not mean that you should go in and read off a piece of paper, she says. Instead, you should do your homework on the patient and his or her background and individual needs and concerns, so you can best tailor the conversation to meet the specific questions you expect. To this end, she says, it doesn’t hurt to develop a written disclosure policy for the practice so individual physicians know how to prepare themselves for such confrontations: “We know our patients. And so if we know them, we can design communications accordingly.”

Language skills matter too. Rozovsky says she’s witnessed doctors take defensive and even jocular tones when informing patients of medical mistakes, neither of which is appropriate. “There are ways to talk to patients in which you don’t engender litigation,” she explains.

“I’ve seen doctors who drop the ball right on their own foot by the way they talk to patients: ‘Yeah, I screwed up, so sue me,’ is not the approach to use. And I’ve seen it done in a very jocular manner: ‘That doctor of yours, I think we’ve got to do something about him. He’s got to be a little more on the ball, don’t you think?’ And the patients laugh with the doctor.” Once the physician leaves and the patient has time to think about the conversation or talk to a family member, such laughter can quickly turn into anger.

The final element of the conversation - which many experts say is the most important - is to tell the patients what you plan to do both to help them get through the situation and to ensure that such a mistake will not happen again.

For example, if the mistake was the result of an illegible prescription, the physician can take simple steps such as resolving to print all future scripts or  to invest in software that sends paperless scripts directly to pharmacies. If the error occurred because of an overlooked lab report, change your office processes to ensure that you sign off on labs before they are filed, and tell the patient about that change. If faulty communications were at the root of the problem, change your reporting system and explain to the patient precisely how you’ve changed it.

“That’s your obligation to patients,” says O’Connell. “Psychologically, patients want something good to come of the mistake that they experienced. … If they think the doctor changed nothing, and that other patients are being hurt in the same way, that’s what often drives malpractice suits.”

But it was just a tiny mistake …

Medical mistakes come in all sizes. Why should physicians apologize if they are reasonably sure the patient will suffer no negative consequences as the result of a small error that they are highly unlikely to ever detect?

When physicians approach O’Connell with such scenarios, he says it’s possible that they would not ethically be required to disclose these errors. “But,” he adds, “they would have to be very careful to understand that it has no perceptible effects on the patient, it poses no risk to the patient in the future, and nothing about that patient’s level of observation would change.” In such cases, O’Connell says he would ask the physician, “But if it’s such a minor medical error, why are you so reluctant to disclose it?”

In order for a successful legal action to take place, a patient has to have harm come to them; they have to prove that you operated below accepted medical standards, and that they experienced a level of harm for which compensation is appropriate. “So if the doctor is saying to me, this is such a minor error, Dr. O’Connell, the patient won’t feel it at all, then my question to him or her would be, ‘Then why wouldn’t you tell the patient about it and apologize?’”

The greater risk, says O’Connell, is going to be if the patient finds out about the error and begins to believe that you have concealed it. “Then you’ve got a problem on your hands,” he says. “It does nothing to stop them from writing to your medical licensing board and claiming unethical behavior, and if you ever talk to a physician who’s had to respond to a medical quality assurance committee complaint, that’s its own big problem that requires a lawyer.”

Kidwell agrees, saying that when a physician discloses an error that he or the patient feels is negligible, his credibility is actually enhanced with that patient: “The patient thinks, ‘Wow, you didn’t have to tell me that.’”

The “second victim”

With all of the recent emphasis on the advisability and best practices regarding disclosure, it’s easy to forget that patients are not the only parties who experience anguish when physicians inadvertently harm them.

“It is emotionally taxing for the care provider too,” reminds Rozovsky, “and we should not ignore the needs of the physician who is also a participant in the disclosure process.” Such physicians may feel the need to talk to a therapist or call the EAP program provided by their health insurance carrier for help finding ways to deal with their feelings of guilt.

Kidwell calls the physician the “second victim” in clear cases of medical mistakes, and he agrees with Rozovsky that doctors who have trouble coping with the realities of harming a patient should seek out emotional resources or support services. Working through the healing process with the injured patient can also help, as both patient and physician will take comfort in knowing that the mistake has been rectified. O’Connell recommends keeping close tabs on the patient after the mistake has been disclosed, and asking her, “Are you comfortable with the medical care that I’m now providing? Am I doing everything that I need to do to help you and your family recover practically and emotionally from any harm that this has caused you?”

Of course, Rozovsky cautions physicians to keep in mind that not all adverse events are the result of medical mistakes, and that they should be aware that they are not always at fault for unanticipated negative outcomes. “Sometimes doctors beat themselves up … ‘What did I miss? What did I do wrong?’ We forget that patients are sometimes not forthcoming, not compliant, and so the adverse outcome may have been a consequence of noncompliant behavior. That’s a very different discussion.”

Limitations of disclosure

Whether or not physicians fully disclose errors, they can still be sued. “I hate to say this, but even if you disclose and are honest with a patient, there’s still likely to be a claim,” maintains Kidwell. “You may avoid it by being candid about it, but you can’t be guaranteed that.”

But can your apology be used against you? Not in an increasing number of states that have enacted “apology laws.” At least 30 states now have such laws on the books, which offer varying amounts of legal protection for physicians who apologize or express sympathy to patients by preventing such statements from being used against providers in any subsequent lawsuits.

Kidwell and other experts cite Colorado as possessing the most progressive of such laws. Physicians there are free to apologize and even admit fault to a patient for a medical error without fear of such statements being used against them in court.

Not all of these laws are well written, however. Some states, such as Maryland, have adopted laws that specifically prohibit the admission of physician apologies in court. However, explicitly saying “it’s my fault” is admissible. “That in my opinion is just dumb,” says Kidwell. “Then you’ve really got the doctors saying, ‘Well, I can say this, but not that.’ That’s probably worse than no law at all.”

Meanwhile, says Kidwell, Pennsylvania has adopted a statute requiring reports for serious medical errors, yet it has no apology law to protect physicians. Regardless of the details of the apology laws your state has or has not adopted, experts advise physicians to apologize when they recognize an error. “No. 1, it’s the right thing to do,” says Kidwell. “No. 2, there may be some benefits for the physician in terms of avoiding litigation or claims - I can’t promise that, but there may be - and No. 3, it can help the healing process for both patients and the physician.”

Nash agrees that full disclosure is endemic to good medical ethics, but he bemoans the fact that some state governments are telling physicians what they may or may not do regarding the disclosure of medical errors. “It should come from us - the profession,” he says. “But I do understand why it’s happening.”

All agree that the groundswell toward physician disclosure is continuing to gain momentum as more and more states adopt and amend their apology laws. “Nowadays people do see the wisdom of disclosure,” says Kidwell, “and I think that’s the way that people are going, and certainly the lawyers have come around to realize that the longstanding advice of ‘be quiet and be invisible’ is not the way to practice. And if lawyers and doctors end up doing this, the patients will appreciate it. You have to do the right thing.”

Barbara A. Gabriel holds an MA in English literature and is the associate editor of Physicians Practice. She has served as editor and writer for numerous healthcare publications during the past 10 years. Barbara can be reached at bgabriel@physicianspractice.com.

This article originally appeared in the November 2007 issue of Physicians Practice.