WORST CASE What can and can't physicians say after adverse outcomes?

After a procedure that results in a patient's accidental death, a surgeon meets with family members and says, "I am very sorry and I take full responsibility. Let me tell you what happened and why." Has he just admitted negligence, or will his openness avert a lawsuit? The short answer: It depends. Here's why this emotionally charged situation remains a legal tightrope.

Communication and condolences
In recent years, academics and lawmakers have speculated on whether improvements in physicians' communication skills could help to defuse litigation following adverse outcomes. To encourage more open discussion among physicians, patients and families, at least 37 states have enacted "I'm Sorry" laws. Each one is different, but their general intent is the same: to foster transparency and preclude a physician's expression of apology, responsibility or remorse from being admitted as evidence in the event of a malpractice action.

On its face, this type of legislation makes good sense. I've defended several malpractice cases that could have been avoided with better communication. In my experience, one sure way for a physician to get sued after unexpected results is to ignore the patient and family members. Because while money steals the spotlight once a lawsuit is filed, the plaintiff's initial motivation is to understand what went wrong and to get some sense of resolution.

However, problems arise in the implementation and consistent application of "I'm Sorry" laws. They can't script the conversation that should follow an adverse outcome — there is simply no magic language that is always protected — and both parties will have different, or perhaps shrewdly constructed, recollections of the discussion when depositions are taken years later. Every statement can be misconstrued or manipulated to fit an exception.

The details of disclosure
Taking an overtly defensive posture is hardly a better option. Failing to provide satisfactory answers can hurt a physician's defense, particularly since the American Medical Association's ethical rules and Joint Commission standards both require openness with regard to unanticipated events.

The timing of this explanation can also be problematic. Patients and families will want explanations immediately, leaving little time for physicians to confer with risk managers or attorneys. It is advisable to give factual responses to questions, acknowledge feelings of grief and anger, promise an investigation and offer assistance with immediate needs. If the cause of the event is less than certain, provide the most accurate information currently available.

This full and frank disclosure should be delivered in a setting that guarantees privacy and is respectful to the sensitivity of the situation. Providers should document the disclosure in the medical record, identifying who was involved in the discussion, when it took place and exactly what was said.

Train your staff to be sensitive to these issues, as they may interact with the patient if follow-up care is necessary. Remind them to be respectful and empathetic to the patient's needs while not providing any information that doesn't originate from the physician.

Contingency planning
When does an apology end and an admission begin? My suggestion is, while expressing sympathy is both understandable and appropriate, avoid language that gives even the impression of accepting responsibility or acknowledging any degree of fault. The latter statements may be admissible even under "I'm Sorry" laws, and may run counter to the defense pursued once all the facts become known.

Keep in mind that during these difficult discussions, it is important that the physician's general tone be one of sympathy for the circumstances rather than an apology, which may be interpreted as an admission of error. I recognize, however, that this course may require a degree of tact that not every practitioner possesses.

Putting aside your physicians' interpersonal skill sets, the best practice for everyone is to have a clear understanding of your state's rules on the admissibility of statements made by caregivers following an adverse event, before such an event happens. Even if your state has an "I'm Sorry" law on the books, there is a wide variance among the statutes.

Remember, too, that when adverse events occur, physicians will not have time to seek counsel. It is highly advisable that they discuss such contingencies about the applicable laws with their attorneys, risk managers or insurance providers now, in order to prepare themselves for the difficult moments after something unexpected arises.