Physicians have an ethical duty to disclose a harmful error to a patient, according to the American Medical Association. But, is an apology also required? And will it ultimately lead to a malpractice suit?
When all is said and done, a sincere apology can go a long way in alleviating patient anger and dissatisfaction. But, historically, physicians have been hesitant to offer patients an apology for a few reasons. The first is the discomfort of admitting that they have done something wrong. The second is the fear of being sued for malpractice.
“Patients want to know what happened. It’s amazing how often nobody tells them,” said Lucian Leape, MD, adjunct professor, Department of Health Policy and Management, Harvard T.H. Chan School of Public Health, Boston, MA, in a video produced by the Institute for Healthcare Improvement.
“For 100 years, doctors have been told by the risk management people, by the lawyers, don’t admit that anything happened, don’t admit that you did anything wrong, don’t apologize. If you do all that, you’re much more likely to be sued and it will be used against you in court. That’s all just plain wrong. That’s a myth. It’s an absolute myth. It’s exactly the other way around,” he explained.
According to Dr. Leape, an internationally recognized leader of the patient safety movement, there is no evidence whatsoever that being honest with patients makes it more likely that you will be sued. In fact, he said, most evidence points to the opposite.
For example, in a recent study published in Health Affairs, Stanford University researchers—led by Michelle Mello, JD, PhD, professor, Departments of Health Research and Policy, and Law, Stanford University School of Medicine, Stanford, CA—found that, in patient injury cases, revealing facts and offering an apology to patients did not lead to an increase in lawsuits.
They detailed the results from a communication-and-resolution program—CARe (Communication, Apology, and Resolution)—implemented at two large Massachusetts hospital systems (Beth Israel Deaconess Medical Center and Baystate Medical Center).
Dr. Mello and colleagues assessed 989 adverse events that occurred from 2013 to 2015. Of these, 60 entered the CARe program based on information that the patients intended to sue. Another 929 were included because they were adverse events that exceeded the severity threshold or met other criteria.
The goals of the CARe program were to improve transparency and patient safety, reduce lawsuits, and support physicians in disclosing errors or injuries. Program protocol dictated that compensation be proactively offered to patients whenever a standard-of-care violation caused serious harm.
Roughly 75% of injuries did not qualify for compensation because the standard of care was met, and about 33% of injuries were not cause by medical care. Only 5% of cases eventually led to malpractice claims or lawsuits, and only 9% led to compensation.
Compensation that resulted from the program was relatively low, with a median payment of $75,000. This compares well with the approximately $225,000 median payment to plaintiffs who won malpractice lawsuits in 2015 in the United States. The largest payment was $2 million.
In 181 events for which compensation criteria were not met, hospitals offered to waive medical bills or give patients modest reimbursements, such as meal vouchers or gift cards.
“These programs are usually talked about as a way to resolve cases of medical error, but what they do more often is encourage communication with patients about non-error events—as well as systematic evaluation of each event for patient-safety lessons,” said Dr. Mello.
She noted that offering patients an explanation of what happened may serve to diffuse their anger— something that may explain the low percentage of events that led to litigation.
“Given the rarity with which communication-and-resolution events resulted in settlements, it is reasonable to wonder whether the programs are worth the time they require, but risk managers in our study thought they were. By providing explanations and expressions of sympathy for harms not arising from negligence, communication-and-resolution programs may avert lawsuits springing from misunderstanding,” concluded Dr. Mello and colleagues.
Dr. Leape agreed: “When you are honest, and inform patients, and apologize and make some effort at restitution, the actual number of suits drops dramatically and the total amount of payouts drop dramatically. That is, you pay much smaller amounts to compensate people for the injury. The kind of payments most of us think [are] totally appropriate. I don’t think patients should have to sue us in order to have us pay for an injury that we caused.”
Delivering an effective apology
But what constitutes an effective apology? And can it actually prevent legal action on the part of the patient?
“Malpractice lawyers tell me that two-thirds of patients sue in order to find out what happened. I have had outstanding lawyers look me in the face and say, if the doctors would tell them what happened and say they were sorry, most of these patients would not have filed suits,” said Dr. Leape.
“If indeed, the system has broken down and individuals have made mistakes, admit it, and apologize for it. And make restitution for the financial impact of it, if indeed it was our fault and we caused it. It really isn’t much more complicated than all that,” he added.
To apologize effectively to a patient for a medical error, first find out exactly what happened. Get the facts. Don’t simply react with emotion or guilt.
If an apology is, indeed, warranted, make sure that it is sincere. Acknowledge the error, give the patient an explanation of what happened, express your remorse that it happened, and outline what steps you will take to make reparation.
Here are a few more tips:
Make your apology in a comfortable and private place. Also, consider who should be present during the apology. Should it be simply the healthcare provider who made the mistake, or the department chief? Should the patient’s family be present?
First, ask the patient about his or her understanding of what happened. This will give you insight into how the situation was interpreted by them, what they know, and what they don’t know. Ask them to list their concerns, how they have been impacted, any questions they may have, and any needs that haven’t been met.
Then, present a simple, chronological timeline of the facts and the reasons behind what interventions were used, and which were not.
Avoid angry rebuttals and defensive statements that may relay insincerity to the patient during an apology.
Be prepared to discuss a fair offer of compensation with patients in whom an actual injury has occurred. Start by communicating your understanding that no amount of money can compensate for the harm or loss the patient or their family may have experienced, as well as your hope that it may, to some extent, alleviate some of their burden. Remember that financial compensation may be also be required for medical errors that do not cause harm.
If you are faced with a lawsuit, carefully research the incident and arm yourself with the facts—and a sincere apology. An honest and heartfelt apology can go a long way to alleviate patient anger or confusion and perhaps even prevent—rather than hasten—any legal action.