Should Docs Rethink Saying 'I'm Sorry' After a Medical Error?

Leigh Page

Disclosures

July 17, 2019

Based on reports from other doctors who have experienced the process, Cotton notes a strategy he would use if he were a physician in one of these programs. "I'd meet with a variety of people to figure out the best way to apologize. And after everyone is satisfied with what I am going to say, and the lawyers have signed off on it and I rehearsed it, I'd go in and deliver my scripted apology to the patient and his family."

Then comes the money offer. "I'll also offer the $5000 to cover their incidental costs related to spending a few extra days in the hospital, which of course is pennies on the dollar of what they'd get if they sued us," Cotton says.

However, those familiar with how these programs work disagree with this assessment. It is true that physicians and others involved in the event meet to develop a common narrative of what happened, but there are good reasons for this, says Thomas H. Gallagher, MD, associate chair of the department of medicine at the University of Washington and a leading expert in physician apologies.

"Initially, no single person knows everything that happened, and every caregiver needs to be able to transmit the full story to the patient or family," Gallagher says. "These exchanges should not be interpreted as everyone getting together to create a false narrative," he adds. "Different narratives about what happened are a sure recipe for the patient and family to get suspicious."

Regarding CRP payments to patients, defenders note that for many years, hospitals have worked with patients who had been harmed by errors to determine a payment. These payments are lower than what the patient would get in court, but the advantage is that the patient gets paid right away without lengthy litigation.

Are CRPs Widely Applicable?

It might be very difficult, although not impossible, to replicate CRPs outside of hospitals.

Large hospitals can oversee all aspects of the apology process, including payments, because they are often self-insured for medical malpractice.

In contrast, individual physicians have less control over payments in return for apologies. Indeed, malpractice insurance carriers often resist apologizing as a strategy, but there are a few carriers that support apologies, notably COPIC in Colorado.[14]

Furthermore, hospitals are required to disclose all "unanticipated outcomes" to patients by The Joint Commission, the accreditor for hospitals.[15] Seven states also require hospital disclosure, and two more states make it discretionary.[14]

Physicians, on the other hand, are not directly subject to The Joint Commission standard. Cotton also argues that requiring doctors to apologize would violate the First Amendment of the US Constitution. "I have the right to remain silent," he says. "No law can ever force me to apologize."

Moreover, Cotton thinks physicians should only apologize because they think it is the right thing to do and not because they will get malpractice protection or patients will get a CRP payment.

"When you deliver expressions of empathy, it should be done for the purpose of helping the patient," he says. "Otherwise it's not empathy. Empathy is not a risk management strategy."

The Right Way to Apologize

Learning how to apologize can be a little tricky because apologizing requires complete sincerity, and coaching or using scripted apologies undermine that sincerity, according to Gallagher.

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