Apologies for Medical Errors Come With Mixed Messages

Gwen Mayes, JD, MMSc

Disclosures

May 12, 2005

Growing up in the South, I picked up a rather annoying and unnecessary habit of apologizing for everything that went wrong around me, even when I wasn't at fault. If a friend didn't have a good day at work, "I'm sorry" was all I knew to say. If my mother's favorite cake fell in the oven, "I'm sorry" was heard around the dinner table. As a child, the simple phrase "I'm sorry" wasn't so much an expression of remorse for something I did, as it was a natural reaction to feeling bad for someone when something went wrong.

But what happens when bad things happen to good people in a hospital? Is an apology as harmless when one has made a medical error?

In 1999, the Institute of Medicine released its report, To Err is Human , which indicated that between 44,000 and 98,000 deaths occur each year in this country as a result of medical errors. Since then, the focus on patient safety and systematic change for reducing errors in the medical arena has grown. The movement, in part, involves legislation that aims to improve communications between healthcare providers and patients in order to create a more transparent environment in which medical errors do not automatically trigger an adversarial situation.

"I'm sorry" legislation, as is it often referred to, hopes to soften the medical malpractice divide that pits skeptical physicians and healthcare providers against plaintiff lawyers and angry patients. Although they come with different bells and whistles (eg, one bill safeguards comments made within 72 hours of a recognized error), in essence the laws shield apologies and expressions of sympathy from being introduced as evidence of liability in a medical negligence lawsuit.

"Right now the approach to medical errors is deny and defend," says Jonathan R. Cohen, JD, Associate Professor, Levin College of Law, University of Florida, and noted expert in dispute mediation and negotiation (personal communication, Jonathan R. Cohen, April 28, 2005). "Not apologizing creates a 'Catch-22' where the physician may want to apologize, feels it is the right thing to do, but is being told by his or her insurance carrier or the hospital administrator to keep quiet. As a result, his silence causes the patient or caregiver to become angry and feel even more removed and hurt. Very little gets accomplished other than creating a standoff."

Advocates of apology legislation draw strength from the successful full-disclosure program implemented at the Veterans Affairs Medical Center in Lexington, Kentucky. At one time, this Center had one of the highest malpractice claims totals in the VA system; now it ranks among the lowest after dramatically changing how it handled medical errors.[1] Instead of circling the wagons and keeping silent, the Center addresses the problem openly and quickly. Any patient harmed by a medical error is immediately informed of what happened and offered an apology by the chief of staff. If the risk management team determines the hospital or a staff member is at fault, a fair settlement offer is made.

"Apologies for medical errors get us to a better place," says Kathryn Wire, JD, MBA, President, Kathryn Wire Risk Strategies, St. Louis, Missouri, a former practicing medical malpractice attorney with more than 20 years of experience in healthcare risk management (personal communication, Kathryn K. Wire, Principal, Kathryn Wire Risk Strategies; April 27, 2005). "Although the JCAHO [Joint Commission on Accreditation of Healthcare Organizations] requires that adverse events be disclosed, from a claims perspective it's still the right thing to do. Incorporating an apology into the disclosure enables the provider to establish a relationship with the family and patient in order to move forward in a way that hopefully will avoid litigation."

More often than not, not apologizing adds fuel to the fire. Patients feel overlooked and disconnected from providers and a healthcare system that at a prior point welcomed them in the door. Once an error is made, communications seem to cease. "At some point, any road you take is going to be difficult, but not apologizing can be extremely irritating and annoying to the patient and family," says Cohen. Even if a suit can't be avoided, apologies can reduce the animosity enough to reach a settlement sooner, Cohen adds.

Amid the passage of several state "I'm sorry" laws, a new national coalition has emerged advocating a formal apology for medical errors as a possible solution to the medical malpractice debate.[2] The group, "The Sorry Works! Coalition," includes a diverse mix of doctors, lawyers, insurers, patients, and concerned citizens who work with legislatures, policy experts, the media, and lawyers on both sides of the table to advocate for full-disclosure of medical errors. Founded by Doug Wojcieszak, a political consultant and the brother of a 39-year-old man who died of massive myocardial infarctions as the result of a "gross medical error," the Coalition pushes a transparent process in which providers consciously address medical errors openly when possible.

"We're not opposed to the 'I'm sorry' laws, it's just that the Coalition advocates a much broader approach," says Wojcieszak (personal communication, Doug Wojcieszak, April 28, 2005). "After a bad outcome, the physicians and hospitals first do a root cause analysis as quickly as possible. If there's been an error on the part of the hospital or one of its staff, then the authorities should apologize and immediately begin the process of discussing a settlement. But if there's been no deviation of the standard of care, no negligence, then the hospital personnel should sit down with the family, until they are blue in the face if necessary, and open the charts and explain to the patient and the family exactly what happened and why."

Wojcieszak fiercely encourages this attentive, immediate response on the part of the hospital, citing his own experience as "just horrible." "While my brother was dying on the operating table, his doctor came out, took one look at my mother in the hall and ran, literally ran, the other way."

According to Wire, risk managers and administrators should be ready to talk settlement early on. "There's no need to wait, but often times the process isn't very transparent and the hospital wants to hold off talking to the family about a settlement until after the defense lawyers have been called in, some depositions have been taken and the medical experts have weighed in. My question to them is, 'what are you going to learn?" says Wire. "It's the same thing with insurance companies. They very often just don't want to move along, and this perpetual silence can add to the problem. In the short run, the cost of settlements may rise, but in the long run you hopefully lower the cost of litigation."

From the little bit of evidence available from the VA Medical Center, apologies seem to lead to a more amicable settlement. "In addition, they begin to change the healthcare culture to one that is more transparent," says Cohen. "While we really don't know at this point if these laws are effective, there is some potential for good and we should wait and see what this legislation produces." Part of Cohen's fence riding comes from his concerns that the laws will backhandedly promote insincere apologies. "Under the old system, if a physician knew that his apology could be used as evidence at trial, there would be a certain cost, a certain weight, to the apology and we would probably consider it more sincere. With these new laws, if a physician knows an expression of sympathy cannot be used, the apology might be more contrived or less sincere."

Even others believe the apology legislation is perhaps unnecessary, maybe a bit of hand holding for the physicians. "I don't think these laws hurt anything," says Wire, "but I honestly question whether they add anything to the current system. They are very limited in scope." How limited depends on the state law, but for the most part the immunity only covers expressions of benevolence and sympathy, not apologies that come with an admission of fault or guilt. Parsing one's words at a time of crisis can be difficult. While "I'm sorry this treatment isn't working" might come within the ambit of the law, "I'm sorry this treatment isn't working, but we should have started you on it sooner" might not be.

Staunch advocates of apologies after medical errors admit, however, that there are some circumstances in which an apology isn't appropriate; or, if it is, the timing and setting have to be carefully determined. According to Cohen, an apology probably isn't appropriate if someone sincerely does not believe he has made a mistake or if she needs to wait to determine exactly what happened. "There's also many situations that are so emotionally charged that there is a real concern that the information will be misused," says Cohen. "But I feel that in even the worst situations where there has been a death, the need for an apology rises and also the sensitivity in how it is made rises as well."

Unfortunately, comments made at the time of a medical error are often misconstrued or made in the heat of the moment. Deciphering the "he-said-she-said" comments -- sometimes years after the actual event -- is difficult if not impossible. What is certain, according to Wojcieszak, is that open communication is at the core of medical malpractice reform. "At the end of the day, the current proposals on the table for medical malpractice reform can make it a little harder for a patient to sue and a little less lucrative for the attorneys, but we run the risk of keeping the same systems in place," says Wojcieszak. "We still don't know that the same mistakes aren't being made again."

Few dispute that apology laws are just the very tip of the iceberg in a larger effort to ease the tension between harmed patients and the healthcare system. According to Ila Rothschild, JD, healthcare consultant in Chicago and board member of the American College of Legal Medicine, the current system of liability doesn't support change because it focuses on the "sharp end of the stick" (personal communication, Ila Rothschild, JD, April 26, 2005). "Healthcare really is at a crossroads, and there must be strategies for improving and reducing liability. At the foundation is patient safety. Somehow we have got to get on the same side, and that is the side of patient safety."

"These laws are baby steps, but steps in the right direction," says Rothschild. Although not universally endorsed, Wojcieszak claims that plaintiff's lawyers have been more receptive than defense attorneys to the work of his Coalition. "There are plenty of attorneys out there [who] don't like these laws," says Cohen. No surprise in that most defense attorneys and malpractice carriers advise physicians to refrain from talking to patients and offering explanations when an error occurs, whether it be to apologize or not. But as Rothschild reminds us, "patients know more than ever about their own healthcare, and we expect them to take some responsibility for better care. We're just beginning to see what these laws have to offer, but we must promote the systems change that will ensure patient safety, and better communication is part of it."

The "deny and defend" culture will not be one that easily dismantles, but somewhere there's the hope that the simple act of apology will not be forgone when something terrible has gone wrong with a patient.

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