Communicating Unanticipated Adverse Outcomes; How Do I Say I'm Sorry? June 15, 2015 Guest Blog, MIEC, Practice Management loss prevention, MIEC, physician communication, unexpected adverse outcome 0 Confused about discussions related to disclosure of unexpected adverse outcomes, apology versus sympathy, early resolution of injury-related complaints, and how to avoid unnecessary liability risks? You’re not alone. SFMS has partnered with the Medical Insurance Exchange of California (MIEC) to launch a two-part blog post series to assist physicians handle potentially difficult circumstances with compassion, truthfulness and candor. What does “I’m sorry” mean? In the lifetime of a practice, a physician experiences a multitude of opportunities to offer an expression of sympathy, condolence, regret, or apology. Saying “I’m sorry,” the most common representation of these sentiments, can convey a variety of messages depending on the context in which it’s expressed. Defense attorneys historically counseled physicians to avoid saying “I’m sorry,” assuming that a plaintiff’s attorney would argue that the words were an admission of guilt. Dr. Lucian Leape, Professor of Health Policy at Harvard Medical School, has this to say about that assumption: “For decades, lawyers and risk managers have claimed that admitting responsibility and apologizing will increase the likelihood of a patient filing a malpractice suit and be used against a doctor in court if they sue. However, this assertion, which seems reasonable, has no basis in fact. There is to my knowledge not a shred of evidence to support it. It is a myth.”1 In fact, according to Norman Tabler, there is good evidence “...that instead of increasing lawsuits and awards to patients, apologies actually reduce both the incidence of lawsuits and the amount of awards. Evidence from multi-year studies at both the Veterans Administration Hospital of Lexington, Kentucky, and University of Michigan Health support this conclusion.”2 Notwithstanding any legal consequences, physicians have an ethical duty to inform their patient about what happened during a treatment or surgery. In 2001, the Joint Commission on Accreditation of Healthcare Organizations (The Joint Commission) established a standard that requires hospitals to ensure that unexpected adverse outcomes are fully disclosed to patients. Until recently, no one championed the cause of physicians who want to apologize to patients—and no one helped them to do so in a way that avoids putting the physician needlessly in legal jeopardy. SITUATION 1: You appropriately prescribed Tegretol and your patient developed Stevens Johnson syndrome. SUGGESTION 1: You say, “Mrs. Bee, this is one of those unlikely, but possible, side effects we discussed when I prescribed the medication and I am so sorry that you were one of the people who experienced it! I will do everything possible to take care of your symptoms and look for another solution to your original problem.” Sometimes it is appropriate—even essential—to say “I’m sorry.” Even in those instances, some physicians hesitate, fearful that an apology will be held against them if the patient brings a lawsuit against them. On the other hand, a more damaging situation could unfold: consider the effect it would have on a jury if a physician was on the witness stand and the plaintiff’s attorney asked, “Doctor, did you ever tell my injured client that you were sorry this happened?” and the physician replies, “No.” “I’m sorry” legislation Legislators in many states have passed laws in recent years to protect physicians who express empathy, compassion, and condolence to injured patients. In California, a physician’s expression of sympathy for patients’ untoward outcomes is protected from being used in a civil action as an admission of liability; however, if the physician orally admits liability, the confession of fault is admissible (See California Evidence Code §1160). California Evidence Code §1160 The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section. For purposes of this section: “Accident” means an occurrence resulting in injury or death to one or more persons which is not the result of willful action by a party. “Benevolent gestures” means actions which convey a sense of compassion or commiseration emanating from humane impulses. “Family” means the spouse, parent, grandparent, stepmother, stepfather, child, grandchild, brother, sister, half-brother, half-sister, adopted children of parent, or spouse’s parents of an injured party. Click here to view part 2 of this blog post series. This article originally appeared in MIEC The Exchange, Issue 6 (April 2015). Click here for more information about MIEC and its service offerings. For more information about this article and loss prevention, please contact Dorothy Dukes, MIEC’s Senior Loss Prevention Representative at (800) 227-4527 or email dorothyd@miec.com. References Leape, Lucian, MD, "Full Disclosure and Apology—An Idea Whose Time has Come," The Physician Executive, March-April 2006, p. 17. Tabler, Norman F.,"Dealing with a medical mistake: Should physicians apologize to patients?," Medical Economics, November 10, 2013. Comments are closed.
