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Medical Malpractice
Sometimes It's OK to Say "I'm Sorry"
Catherine Griswold
Publish Date: June 10, 2008   |  Tags:   Medical Malpractice-Legal

At the end of a gallbladder procedure in a Massachusetts hospital, the surgeon wiped the female patient's abdomen with an alcohol solution to remove the sticky prep that had been applied before surgery. Suddenly he remembered that he'd promised, as a favor to the patient, to remove a mole on her belly. But the alcohol he had just applied hadn't yet evaporated. The hot cautery instrument ignited a fire of blue flames "similar to a flamb??" on the patient's skin, according to a report in the Boston Globe in 2007. The drapes also caught fire and had to be pulled away. By the time the surgeon and the OR team members had patted out the fire, the patient had suffered first- and second-degree burns.

The patient woke up in pain from the burns and said that no one at the hospital explained to her why she was burned. "I just wanted to know what happened and for someone to talk to me," the patient told the Globe. "It would have been nice if I had gotten an apology." Afterward, the patient sued the surgeon for malpractice.

Had the surgeon or someone from the hospital apologized, the patient may still have sued. But there's a lot to be said for saying, "I'm sorry." More than 70 percent of respondents in a study published in the Lancet in June 1994 said that their "decision to take legal action was determined not only by the original injury but also by insensitive handling and poor communication after the original incident."

Where did "sorry" go?
Over time many healthcare providers have stopped apologizing for medical errors because of the legal risks of admitting a mistake. Malpractice lawyers and insurance companies often warn providers against using the words "mistake," "error" and "fault" in conversations with patients and their families, and counsel doctors and hospitals to "deny and defend" instead. Many providers fear that an admission of guilt will threaten their livelihoods and reputations, as well as those of the healthcare organizations where they work. For patients and their families, this silence leads to frustration and anger. Sometimes the only way to learn what went wrong is to hire an attorney and go to court.

Slowly, disclosures and apologies are returning to the dialogue between healthcare providers and their patients. In 2001 the Joint Commission called for disclosure of medical errors to patients in its Standard RI.1.2.2. The Joint Commission assumes that "no matter how knowledgeable or careful people are, errors will occur in some situations and may even be likely to occur." The Joint Commission calls for each healthcare facility to have a policy in which patients and their families are "informed about the outcomes of care, including unanticipated outcomes."

The National Patient Safety Foundation, in its Statement of Principle, calls for "a truthful and compassionate explanation about the error and the remedies available to the patient. [The patient and family] should be informed that the factors involved in the injury will be investigated so that steps can be taken to reduce the likelihood of similar injury to other patients."

In the wake of these standards, a group of physicians, lawyers and patient advocates created the Sorry Works! Coalition in 2005 to promote apologizing for medical errors with full disclosure, which they believe will reduce malpractice suits.

If errors are unavoidable, they argue, then why not have policies in place to deal with the aftermath? The concept seems to be working. As the New York Times pointed out last month, "By promptly disclosing medical errors and offering earnest apologies and fair compensation, they hope to restore integrity to dealings with patients, make it easier to learn from mistakes and dilute anger that often fuels lawsuits."

How transparency works
The first disclosure program, which includes proactive disclosure even when patients didn't suspect that anything had gone wrong, was developed by the Veterans Administration Medical Center of Lexington, Ky., in 1987. Between then and 2003, the Lexington VA settled 170 malpractice claims, with only three going to court, according to Steve Kraman, MD, former chief of staff of the VA Medical Center, in his Sorry Works! presentation, "Victim Compensation Without Litigation: The Lexington Experience." The average settlement was $16,000 during that period.

In 2002 the University of Michigan Health System created a full disclosure and apology program and has worked to strengthen its relationship with Michigan trial lawyers in order to head off malpractice claims before they are filed in court. Since the program started, malpractice claims have dropped by two-thirds and the health system has saved millions of dollars in insurance and legal fees, according to Doug Wojcieszak, James W. Saxton and Maggie M. Finkelstein in their book, Sorry Works! Disclosure, Apology, and Relationships Prevent Malpractice Claims (Author House, 2008).

Word of the success of these institutions and others has spread. Today an estimated 70 percent of the country's hospitals have adopted some form of a disclosure policy, although Joint Commission standards call for all facilities to have such a policy. Yet there's a big difference between having a disclosure policy on the books and having a disclosure and apology program designed to head off lawsuits.

Does Your State Have an Apology Law?

Thirty-four states have apology laws, which let physicians and healthcare workers apologize for errors without the apologies being used against them in court. These laws vary in what is inadmissible in court. Some states exempt only oral apologies, while others only protect the healthcare provider and not the institution, or vice versa. Most states, however, don't protect statements or admissions of fault or negligence, according to the authors of Sorry Works! Go to www.sorryworks.net/lawdoc.phtml to find out if your state has an apology law.

When not to apologize
It's possible to apologize too soon or unnecessarily. As soon as possible after a mistake, you should tell the patient what happened and open an investigation. However, the healthcare provider should not apologize until the investigation is over and has determined who, if anyone at all, is at fault. Providers should apologize for errors but not procedures with an unexpected outcome. "It's hard to un-ring the sorry bell," says Mr. Wojcieszak, the founder of Sorry Works!, in an interview with Outpatient Surgery Magazine.

In the end, avoiding malpractice lawsuits is as much a customer service issue as a legal one. The fact that an error was committed is not what dooms healthcare providers in court. "It's the bad behavior after the error," says Mr. Wojcieszak. Most malpractice suits aren't about money, they're about anger. An apology and an offer of a reasonable settlement rarely ends up in court. An apology puts the defendant in a positive light because he did the right thing, he says.

The patient can benefit, too. As Lucien Leape, MD, Harvard University professor of health policy and advocate of non-punitive systems for preventing medical errors, has said, "Apology is not a right, but a therapeutic necessity."