COMMENTARY

Physicians Are Talking About: Tort Reform: Does Saying "I'm Sorry" Help?

Nancy R. Terry

Disclosures

November 16, 2009

Does tort reform start with a physician saying "I'm sorry"?

President Obama has long advocated tort reform that emphasizes patient safety over physician legal safety.[1]Under proposals supported by President Obama and Senate Finance Committee Chairman Max Baucus, physicians would be encouraged to apologize for clinical errors and offer fair compensation to patients outside the court system. This is not the tort reform that doctors ordered, but is there anything to it?

Mounting evidence suggests that patients benefit -- and are less likely to sue -- when physicians disclose medical errors, express sympathy, and apologize.[2,3,4]Conversely, patients are more likely to seek legal representation if they believe that communication, honesty, and accountability are lacking after a perceived error.[5]Yet physicians are reluctant to apologize after adverse events because their words can be used in malpractice litigation as admissions of fault.

Apology, from the physician's point of view, is a slippery slope.

A surgeon on Medscape Physician Connect (MPC), a physician-only discussion board, puts the question to his colleagues: When there is a bad outcome, does saying "I'm sorry" help? In their responses, as with their apologies, physicians pick their words carefully.

"Apologies, though difficult, are appropriate," says a family medicine physician, adding that when no apology or acknowledgment of error is offered, patients can become angry.

"Saying I'm sorry may not be the wise legal move, but it is definitely the correct ethical and moral choice when your decisions contribute to a bad outcome," says another family medicine physician.

"Unfortunately, saying I am sorry hurts more than it helps," says a radiologist. Another MPC contributor agrees: "Sorry is often taken by attorneys as a sign that you made a mistake that you now regret." He adds that he knows of several physicians who were successfully sued for complications that were anticipated, and the physicians' words of sympathy were used against them in court.

"Sorry in the doctor-patient relationship is an indictment," says a neurosurgeon.

No one disputes that apology and disclosure after an adverse event are helpful to the patient, but such admissions may also provide a more general benefit. An overall reduction in medical errors would increase patient safety and reduce medical costs. Yet initiatives intended to reduce the frequency of medical errors rely on the recognition and accurate disclosure of medical mishaps. Physicians are the gatekeepers of such information, and fear of malpractice liability is a barrier to physician disclosure.

In the interest of encouraging physicians to disclose medical errors, 36 states have enacted apology laws. In 28 of these states, apology laws prevent the use of expressions of sympathy, regret, and condolence from being used against the physician in subsequent litigation. In the other 8 states, apology laws protect admissions of fault as well as expressions of sympathy.[6]Because of the variation in state laws, physicians should become familiar with the degree of protection offered -- or not offered -- by the states in which they practice.

Not all apologies are appropriate. One MPC contributor points out that a lip-service apology intended as a strategy to protect one's hide does little good. Even a sincere apology may not be appropriate.

A vascular surgeon reports that in managing a patient's complication, he repeatedly apologized each time he caused the patient pain. "Every single family member testified at the medical malpractice trial that I kept saying I'm sorry. I will never apologize to a patient again." A psychiatrist comments that the vascular surgeon's repeated apologies, although well intended, may not have been comforting. "If my doc was ramming my groin and filling the airwaves with I'm sorry, I don't know if -- even as a physician with some vascular surgery training -- I would be able to process I'm sorry as anything but frightening."

"Do you suppose," asks a pediatrician, that patient satisfaction derives "not so much from me saying I'm sorry as from my outlining the steps through which the mishap occurred?"

His supposition is straight to the point. Studies have shown that patients want disclosure of all harmful errors, and they seek information about what happened, why it happened, how consequences of the error will be mitigated, and how recurrences will be prevented.[2,3] They also desire emotional support from their physician. Yet, physicians are guarded in what they say and often omit mention that an error has occurred.[3]One study concluded that disclosure standards and training are necessary for physicians to meet public expectations and promote professional responsibility following errors.[2]

Training in how to interact with patients after an adverse event is becoming more readily available through the Internet. The Sorry Works Coalition (www.sorryworks.net) recommends that doctors provide an empathetic "I'm sorry" immediately after an adverse event, coupled with a promise of an investigation and customer service assistance, such as food, lodging, phone calls, and transportation. The primary issue after a medical error becomes a matter of addressing the patient's needs.

And by serving patient needs, the needs of physicians are also met. Nancy Berlinger, PhD, author of After Harm: Medical Error and the Ethics of Forgiveness (Johns Hopkins University Press; 2007), reported in an interview with Medscape that only 4% of payments to injured patients are jury awards -- the rest are settlements. "If the overwhelming numbers of cases are settled," said Berlinger, "why not give physicians incentives to settle early and patients incentives not to file in court?"[5]She points out that physicians would then be spared the expense, in time and money, of a long court case.

Doug Wojcieszak, the found of Sorry Works, says through apology and disclosure the issue of tort reform is brought to a human scale. "We need to shift the discussion from a political and legal fight to a focus on customer service and how to help the doctor-patient relationship transcend a medical error."[7]

The notion of addressing medical errors in terms of custumer service resonates with an MPC contributor, who quips, "If every medical professional and administrator works really hard to implement these suggestions, then we might rise up to a customer service rating, say, as high as the airlines."

The full MPC discussion is available at: http://boards.medscape.com/forums?14@@.29f5f10e

View this and other discussions in Physician Connect (physicians only; click here to learn more).

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