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Benjamin J. McMichael
R. Lawrence Van Horn
Medical errors are common and are the third-leading cause of death in the United States, accounting for more than 250,000 deaths per year, according to researchers from Johns Hopkins Medicine.
Apologizing to patients for medical errors is encouraged by various health care associations, but several barriers, including fear of being sued, may hinder the offering of apologies. Several states have enacted laws to allow physicians to say “I’m sorry” without having the apology used in court to allay such fears, as well as reduce costly malpractice litigations; however, new research published in the Stanford Law Review suggests that these laws do not reduce lawsuits, but rather let the patient know a mistake was made and that a successful claim is possible.
Despite these new findings, several experts who spoke with Healio Primary Care Today emphasized that when medical errors occur, apologizing to patients, particularly apologizing effectively, usually leads to better outcomes for everyone involved.
Prior research also supports medical professionals offering apologies. Specifically, a study published in Annals of Internal Medicine in 2010 found that a program developed by the University of Michigan Health System, known as the Michigan Model, that encouraged full disclosure of medical errors and offered compensation was associated with a reduction in the number of new claims for compensation, number of claims compensated, time to claim resolution and costs related to those claims.
Medical errors are common and are the third-leading cause of death in the United States, accounting for more than 250,000 deaths per year, according to researchers from Johns Hopkins Medicine.
Source: Adobe Stock
Additionally, a more recent study published in Health Services Research in 2016 suggested that error disclosure increases incident reports and decreases claims and costs.
Addressing apology laws
In an interview with Healio Primary Care Today, Benjamin J. McMichael, PhD, JD, first author of the Stanford Law Review paper and assistant professor at Hugh F. Culverhouse Jr. School of Law at the University of Alabama, argued that previous studies have focused on apologies, either in isolation or part of a disclosure program, rather than apology laws.
“Because our paper focuses on apology laws, and not on apologies in isolation, I don’t think our results undermine prior work suggesting that well-executed apologies can effectively assuage anger and reduce malpractice liability risk,” McMichael said.
Apology laws do not offer training to clinicians on how or when to apologize, R. Lawrence Van Horn, PhD, MPH, MBA, co-author of the Stanford Law Review paper and associate professor of management and executive director of health affairs at the Owen Graduate School of Management at Vanderbilt University, told Healio Primary Care Today.
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Without proper training, “clinicians may offer apologies in ways that ultimately increase, not decrease, their malpractice liability risk as demonstrated in our paper,” he said.
Richard G. Roberts
Apology laws are not a panacea,Richard G. Roberts, MD, JD, professor emeritus of family medicine at the University of Wisconsin, told Healio Primary Care Today.
“Doctors too often view an apology law as a get out of jail free card and as a way to relieve some of their guilt,” he said.
This point of view is problematic because it may lead to “premature” or “incorrect” apologies, Roberts said. Some physicians may feel the need to apologize before all the facts are validated because they feel bad that an outcome was not as good as expected, he said.
“Apologizing in such situations may raise, in some patients’ and/or families’ minds, the idea that maybe there was a mistake in care,” Roberts said. “Such apologies may hurt all parties: the doctor may be sued anyway, the patient and/or family may lose trust in their caregivers or pursue futile litigation, the health care and legal systems are burdened with unnecessary costs and resource use to resolve a claim that might never — and should never — have become a claim without the apology.”
Apologies are rarely needed by attorneys to make a case for negligence or causation, he noted. More often, attorneys make their case by establishing negligence through evidence in the medical record and testimony by those involved, he said.
“Apology laws are not insurmountable barriers to successful malpractice claims, as plaintiff's lawyers may contend,” Roberts said. “At the same time, they are not the impermeable lawsuit shield that some doctors fantasize about. Like most things in life, the decision whether and how to make an apology requires judgment.”
Richard C. Boothman
Richard C. Boothman, JD, architect of the Michigan Model and adjunct assistant professor at the University of Michigan Medical School, told Healio Primary Care Today that apologies were never intended as a device to reduce or avoid malpractice claims.
“At first blush, it seems insane to introduce to a patient the idea that their adverse clinical outcome was the result of a medical mistake that should not have happened,” Boothman said. “Yes, that act theoretically can invite a claim. However, the long-term benefits absolutely dwarf the short-term possibility of dodging a bullet.”
A proactive approach based on preserving the patient-provider relationship, accelerating learning and improvement, avoiding unnecessary litigation, decreasing the odds of a repeat error and creating an open rather than defensive culture, instead of focusing on expedience or short-term gain, is essential in apologizing to patients, according to Boothman.
“In that vein, ‘apology laws’ become really meaningless,” he said.
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Importance of honesty, apologizing
“There is almost nothing valuable to the clinical mission in ‘deny and defend,’” Boothman said.
Defending care below the standards of practice is not helpful, he said, adding that it hinders improvement and inhibits a clinical culture of accountability. Defending such dangerous practices, as well as questionable practitioners, can also cause confusing signals to the clinical staff and put more patients at risk, perpetuate the problem further and lead to increased claims, he added.
“It’s short-sighted to vigorously defend every potential and asserted claim regardless of the merits of the case as has been the past practice because it only perpetuates practices that cause otherwise-preventable injuries,” Boothman said.
Allison W. Shuren
Most often, patients want honesty from their physicians, Allison W. Shuren, MSN, JD, a partner at Arnold and Porter Kaye Scholer LLP, told Healio Primary Care Today.
“If you’re going to have a physician-patient relationship based on trust, then that trust means you have to be honest,” she said. “Hiding the information makes it look more culpable.”
An apology stems from a commitment to be honest, Boothman said.
“Honesty is not speculation,” he said. “Honesty is not blaming the patient or anyone else.”
The benefits of responding to a patient with honesty may not always be obvious to the physician, he said.
“It’s far better to introduce the clinical issues directly to the patient and on the physician’s own terms than know secretly about a clinical concern and worry for days, weeks or even years if it’s going to come back to haunt you,” Boothman said. “In my experience, physicians feel much better about raising a clinical concern or mistake on their own terms rather than worrying about a possible claim indefinitely into the future.”
He noted that in his practice, he has found that patients are far more understanding when they are given a chance.
“The very act of approaching patients with the truth is so profound that it has almost invariably strengthened the patient-physician relationship, not the reverse,” Boothman said.
Showing a patient empathy and a sense of caring when things go wrong is a powerful step, according to Boothman. Physicians will not get “in trouble” for demonstrating such compassion, he said.
“When a physician gets callous about his or her patients as people, mistakes and lawsuits are not far behind,” Boothman said. “But the drumbeat of a busy practice can lead to callousness or exhaustion and that reality requires a conscious effort to stay focused on putting the patient at the center of their professional lives. A corollary to this is to always be honest.”
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How to apologize effectively
The process of apologizing begins before a medical error even occurs.
“Communication ahead of time that is tailored to individual patients and their needs is really important — it’s at the heart of the patient-physician relationship but it requires listening, caring and seeing patients as people and not diagnoses,” Boothman said.
Personalized informed consent makes patients feel more respected and shows that their physician really cares, he said.
“When physicians have a strong informed consent process where they are clear with patients and take time to explain the risks and benefits of the procedures to patients, it is then easier to apologize when something goes wrong because the patients were already aware of potential harms,” Shuren said.
Physicians should have an interactive relationship with their patients and make them part of decision making in their health care, she said.
“Ensuring a quality informed consent approach is one of the most underappreciated but powerful insulators against malpractice and it’s something every physician has in his or her power to do,” Boothman said.
Once a medical error does occur, it is crucial to verify all of the facts prior to making an apology.
“It is important that physicians know the difference between facts and what they think happened,” Boothman said. “These situations are often riddled with complex emotions on all sides and it’s not helpful for physicians to be undisciplined in an emotion-filled mea culpa before facts are fully understood.”
“Physicians cannot unring the bell or sponge away an inaccurate statement,” he added.
While gathering the facts, Boothman advises that physicians tell their patients: “This is not the result we wanted. I have an idea of what happened, but I can do more harm guessing at this point. I will get to the bottom of it and let you know exactly what happened, but right now the best thing I can do for you is to see to your new medical needs.” Making a commitment to uncover what happened and pledging to give a full explanation as soon as the facts are verified will help patients to suppress any speculations, he said.
Validating the patient’s injury or harm and remaining committed to their care and to them as people makes a significant difference, he said.
Physicians may feel an innate need to avoid the difficult situation, but suppressing this desire and making a point to directly deal with adverse outcomes is critical, according to Boothman.
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If an apology is warranted, it should always be sincere, as an insincere apology is counterproductive and patients pick up on disingenuousness, he said.
An effective apology involves acknowledgement of the error, an explanation of what happened, expression of remorse and steps toward reparation, according to Roberts.
Who offers the apology and to whom is an important consideration: whether it is the health care provider who made the mistake or the head of organization and if anyone else besides the patient, such as the family, should be present in addition to the patient and person apologizing, Roberts said.
In a paper published in Family Practice Management, Roberts outlined elements to consider when apologizing. Because discussions with patients about a medical error are often highly emotional, Roberts stressed the importance of allowing enough time to get the facts, but noted that allowing too much time to pass may be interpreted as disregard. He also advised that the apology be done in a comfortable and private setting.
Once it is decided who should offer the apology, they should first ask the patient and/or their family about their understanding of what occurred to gain insight on how they have interpreted the situation and their potential gaps in knowledge and misperceptions, according to Roberts. Then, the individual apologizing should present the facts about what happened chronologically and why certain interventions were used or not used, according to Roberts. Jargon, defensive statements and angry rebuttals should be avoided, he noted.
“Responding to patients harmed in the course of their medical care, especially when the harm resulted from a medical mistake, is a process, not a single conversation,” Boothman said. “The first conversation should be 75% listening: listening to the patient’s experience, listening to their concerns, listening to how they’ve been impacted, listening to their new medical questions and understanding their new medical needs. Listening demonstrates respect and graphically shows that the physician remains committed to the patient.”
Patients and/or their families may be skeptical that their physician will actually tell them the truth, he said. Physicians should not blame their patients for being skeptical or emotional, he said. Discussing what the patient can expect and what can be done to prevent similar errors can be helpful, according to Boothman. Stressing to the patient that not being honest with them will put other patients at risk and that the end goal is to improve patient safety is also important, he said.
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“Even when everyone concerned feels that the apology was effective, the patient still has the reality of a — usually — bad outcome to live with and the medical, rehab, work and quality of life costs that result from the bad outcome,” Roberts said. “Therefore, even when patients can forgive, they still need money after a bad outcome.”
An apology should always be paired with a willingness to discuss a fair offer of compensation if an actual injury has occurred, Boothman said. Discussing compensation on the physician’s terms helps facilitate a logical, not emotional discussion and leads to a more sensible payment than one that may be driven by jury verdict stories, he said.
“Any discussion about compensation must be coordinated with the physician’s professional liability insurance carrier,” he said.
While financial compensation may still be required after a medical error occurs, “a sincere, well-deserved apology often is actually a more healing, more durable form of compensation than money,” Boothman said.
A medical error may also cause trauma to the physician, he noted. Physicians must be aware of and prioritize their own mental health and seek help from a reliable source when needed, he said.
“It’s important for physicians to think through how they would handle a situation where a patient has been harmed before it actually happens,” Boothman said. “They should think it through, know the resources available to them, secure resources if they need additional help ahead of time, because it will happen, they will make mistakes, and they’re likely to cause harm. It is best to be clear about how they will handle it and those plans are best laid ahead of time, not in the midst of a crisis.” – by Alaina Tedesco
References:
Kachalia A, et al. Ann Intern Med. 2010;doi:10.7326/0003-4819-153-4-201008170-00002.
Lambert BL, et al. Health Serv Res. 2016;doi:10.1111/1475-6773.12548.
Makary MA, Daniel M. BMJ. 2016;doi:10.1136/bmj.i2139.
McMichael BJ, et al. Stanford Law Rev. 2019;doi:71(2):341-409.
Roberts, RG. Fam PractManag. 2007;doi:14(7):44-9.
Disclosures: Boothman reports retiring after 17 years at the University of Michigan as the chief risk officer and executive director for patient relations and clinical risk and forming a consulting business, Boothman Consulting Group, LLC. Boothman also reports having several contracts with health systems interested in transitioning to the Michigan Model and being a mediator and arbitrator to help parties resolve malpractice claims and other related claims.McMichael,Roberts,Shuren and Van Horn report no relevant financial disclosures.
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