Patient Affairs: When Sorry Doesn't Cut It

It's human nature to want to apologize. When we cut someone off in traffic, when we forget to follow up on an email, when we say something that we shouldn't have, we all want to apologize and make amends. But in the world of medicine — and medical malpractice — "I'm sorry" has always been a bit more complicated. In the medical community, those words have always represented a difficult paradox: You want to express remorse to your patients, but you also don't want to say something that will come back to bite you in the court of law.

If you're a doctor who's made a mistake, what should you do? In response to this question, nearly 40 states have implemented so-called apology laws to give practitioners the ability to express condolences to patients without legal repercussions. When states pass these apology laws, they often list the opportunity to reduce lawsuits and encourage settlements as top priorities.

My colleagues and I have studied apology laws (osmag.net/sGZ7Nh), and we've found no evidence that they are reducing lawsuits and encouraging settlements. In some cases, they actually have the unintended consequence of increasing your liability. If you've made a mistake, it's understandable you might not know what to say. As you ponder your options, here are 3 things you should consider about medical apologies.

1Partial coverage
Just because your state has an apology law doesn't mean you have the full protection to say, "I'm sorry."

Most states protect what we call "partial apologies," or statements that come with no admission of guilt. It's the difference between saying, "I'm sorry you're injured," and "I'm sorry I injured you."

If you've made a mistake, this partial protection comes with some inherent challenges. "I'm sorry you're injured" could come off as inadequate or insincere to a patient or a family member seeking answers. If you try to elaborate beyond the surface-level condolences, you can wade into a dangerous territory and put yourself at risk.

This is one of the fundamental challenges, and perhaps weaknesses, of state apology laws: They encourage physicians to apologize without giving them much guidance about how to do it appropriately. They also don't offer much protection beyond simple statements of sorrow. With this in mind, it makes sense to proceed with caution.

2A big admission
We've seen examples when physicians admitted to mistakes only to learn that those statements were admissible in court. In some states, the line is blurry between what's covered and what's admissible. In one case (osmag.net/pSBhK9), an Ohio surgeon told a patient's family that "he had nicked an artery and that he took full responsibility for it." The physician believed that statement should have been protected under his state's apology law. The appellate court ruled against the surgeon, saying his admission was not a protected apology.

Things became even more confusing in the state when its Supreme Court reached a different conclusion, writing that an apology "is a statement that expresses a feeling of regret for an unanticipated outcome of the patient's medical care and may include an acknowledgment that the patient's medical care fell below the standard of care." The case highlights an important lesson: Sometimes, it's truly hard to tell the difference between an apology and an admission of guilt.

3Disclosure programs
This is not to say that hospitals, surgery centers and physicians should never say they're sorry or admit when they're wrong. In fact, a sincere apology can be a part of a successful risk-mitigation strategy. We've seen larger academic medical centers and health systems go this route when it comes to disclosing adverse events.

More and more, these facilities have found success with their apology and disclosure programs. In these programs, trained staff members admit up front when they've made a mistake, and they carefully choreograph the next steps to disclose the error to patients. These programs typically include early settlement offers for patients and their families. These early offers may be a little less than a plaintiff could receive if he decided to pursue the litigation in court, but it shows the facility is admitting its role in the poor outcome and taking some accountability for the mistake.

Researchers who studied the University of Michigan Health Service's apology and disclosure program found that the demands for compensation fell by about 33%, and the number of lawsuits fell by about 66% after its program went into effect. Those numbers may sound impressive, but they highlight the importance of training and education. A facility-specific apology and disclosure program is much different than a surgeon making a decision to apologize on his own.

In the future, we might see more legislative action to encourage facilities to create these types of programs. The Agency for Healthcare Research and Quality has a "CANDOR" toolkit (osmag.net/A7JTjd) that serves as a guide for what to do after an adverse event. It may provide a good starting point for states and facilities that are looking to go beyond their apology laws.

The hardest word

I'm not writing about whether you should apologize from an ethical perspective. If you've made a mistake that affects a patient and their family, you should expect some consequences. The moral component of a medical apology is a whole other question to consider. But from a legal perspective, if you don't have any training, you should be careful and know the risks. Even in states with apology laws, a poorly worded "I'm sorry" can have serious consequences. After all this time, we've learned a simple "sorry" will not make a medical mistake go away. OSM