If You Apologize, Are You Likely to Be 'On the Hook' for a Lawsuit?

Most experts say risks are reduced

(Editor's Note: This is the first in a two-part series on disclosing errors to emergency department patients. This month, we cover whether liability risks are, in fact, decreased by this practice. Next month, we will give specific strategies to reduce liability risks when apologizing to a patient.)

A few hours after a chest pain patient was worked up and discharged with a non-cardiac diagnosis in a Virginia ED, he was brought back dead on arrival. According to the family, the ED physician got down on his knees in front of the man's wife and begged for forgiveness for missing the diagnosis. The family sued the ED physician, and the case was settled out of court.

The above case happened years before "I'm sorry" legislation was enacted in the state. Interestingly, however, had the law been in existence, it might not have made any difference whatsoever.

"It's possible that we might have been able to keep that out of evidence under the statute, but I am not optimistic," says Joseph P. McMenamin, MD, JD, FCLM, the attorney who defended the ED physician. McMenamin is a partner at Richmond, VA-based McGuireWoods and a former practicing emergency physician.

"The statute has to be obeyed to the letter. You have to be very careful with what you say and how you say it," explains McMenamin. "I suspect the physician still would have been faced with admissible evidence. And that was pretty damaging."

If the apology is brought in as evidence, and exaggerated or distorted by the patient or family, the defense attorney can certainly challenge the accuracy of their account. "I can put my guy on the stand to say what really happened. But if the jury decides to disbelieve what Doctor X has to say, you're stuck with that. The mere fact that the family says it means the jury gets to consider it, and might believe it," says McMenamin. "And a jury hearing that the doctor said he's sorry may think he's basically admitting he was wrong. That may be what they hear."

Are Risks Really Reduced?

Massachusetts is among the states providing statutory protection for providers apologizing for an unfortunate patient outcome. The statute says that such statements are inadmissible in civil cases. "My office routinely files a motion in limine at trial to preclude any statement of apology or sympathy. These motions are routinely allowed," says J. Peter Kelley, JD, a health care attorney with Cambridge, MA-based Foster & Eldridge. "Having this protection, we advise providers in certain circumstances to express sympathy and/or apologize to the patient and family for unfortunate medical results."

Kelley adds that in his experience, disclosure doesn't make the defense more difficult. "Motivation for litigation is fueled by a patient or family feeling the provider is uncaring or dismissive of the bad outcome," he says. "Appropriate disclosure and expressions of sympathy, if properly communicated, can reduce the likelihood of a claim."

Richard C. Boothman, chief risk officer at the University of Michigan Health System in Ann Arbor, says that "I'm sorry laws," in his opinion, haven't been around long enough to be tested. "I don't think that they offer guaranteed protection against the potential abuse of an apology," he says. However, Boothman says that being honest in these situations can reduce your liability in many ways, including diffusing anger. "It can allow the parties to move toward reasonable compensation and emotional closure without the expense, both financial and emotional, of litigation," he says. "When an apology is owed, every day that passes without one causes a new injury. The price to resolve the dispute only rises as time passes."

On the other hand, if in fact an apology is not owed, failing to discuss this with the patient can cement misunderstandings and misconceptions. This can lead to unfounded litigation. "It is always better to avoid a lawsuit, than to win one that never should have been filed in the first place," says Boothman.

However, McMenamin isn't convinced the situation is so clear-cut. "As a defense guy, I don't mind admitting that these statutes give me the willies," he says. "Understanding what the law is on a topic might not necessarily be a walk in the park. Sometimes it's very difficult to figure out what the legislature had in mind. After all, why do we have judges? And if it's a statute that's pretty new, we don't have a lot of case law to point to."

McMenamin adds that even if an ED physician is a scholar of the law, at 2 a.m. when he is trying to figure out what to say to somebody about a maloccurence, he's unlikely to take into consideration any case law that has interpreted the meaning of a statute.

Emory Petrack, MD, FAAP, FACEP, president of Cleveland, OH-based Petrack Consulting, says that while ED physicians frequently apologize about minor issues such as delays in X-ray results, apologies for more serious issues are uncommon in his experience.

"However, I have made apologies myself for medication dosing errors," he says. "Fortunately, while the error was significant-a nurse giving an excessive dose of ibuprofen-there were no expected clinical manifestations."

Petrack says that whether error disclosure to patients can in fact prevent a lawsuit, is "the $64,000 question. In general, I do believe that honesty in communication, which includes acknowledging errors made, is the right thing to do."

With a serious error that is likely to be discovered anyway, failing to be clear about what happened, including a possible apology, may only make the situation worse. "That said, if it were a very serious error, after the clinical concerns are handled, I'd probably contact risk management to bring them quickly in the loop," says Petrack.

If you do apologize, do so with another health care provider in the room. "If it ends up becoming an issue, and there's a deposition or other investigation, the hospital now has two 'witnesses' to the discussion," says Petrack.

Should Mistakes Ever Be Hidden?

"I think it's pretty clear that if you hide a mistake and then somebody finds it, you are probably at much greater risk of losing a case," says Peter Viccellio, MD, FACEP, vice chairman of the department of emergency medicine at the State University of New York at Stony Brook. "A classic example of that would be somebody doctoring a chart. It is seen as proof of guilt."

Rather than training everyone in the ED in how to disclose mistakes to patients, Viccellio recommends designating individuals in the department or hospital. "If someone came to harm in my department, I would feel it most appropriate for me to sit down and talk to them," he says.

Viccellio points out that anytime a patient is called back for a misread CT scan, it constitutes an admission of error. However, other mistakes would never be known by the patient, unless they were told. "Some things you can bury," says Viccellio. "So the question becomes, if I did something that harms a patient and I can hide it, then should I? I meant to give you dexamethasone and instead you got a high dose of methotrexate, that may not give you any manifestations now. But it may increase your risk of cancer down the road."

Viccellio says that in his ED, "if we believe we did something to a patient where there was actual harm and it was our fault, as far as not disclosing it to the patient, I don't think we consider that as an option. We would feel compelled to inform the patient."

Viccellio says that with error disclosure, the question isn't whether or not it influences juries. "The question is whether or not your actions influence whether it ever becomes a malpractice suit to begin with," he says. "Most people, in fact, don't sue after a medical mistake. The statistics are in your favor. But most studies suggest that an angry person is more likely to sue. And if I hide something from them and they find out, I think it's much more likely that they would sue, or try to sue."

Viccellio acknowledges his frustration with the lack of legitimacy of many ED malpractice cases. "But because that's a problem doesn't mean that therefore we're entitled to lie about what we do," he says. "The fact is, there are terrible problems with the system of litigation. But does that excuse us for being dishonest with our patients about errors that we make? To me, the answer is no."

Even mistakes that have no consequence are a "slippery slope," according to Viccellio. He gives the example of a patient who was in cardiac arrest for 30 minutes before they arrived in the ED. It's later discovered that the endotracheal tube placed in the ED, long after the patient had any chance of survival, was in the esophagus instead of in the airway, Whether there is a legitimate purpose in informing the family of such events, which had no chance of altering the outcome, is a matter of controversy.

However, the situation is different for a child who was intubated with the endotracheal tube in the esophagus, got no oxygen for about 10 minutes and is severely disabled, possibly as a result of the mistake. "That's an example of something that the family might not ever know unless you told them," says Viccellio. "And if you do tell them, it does introduce the possibility of a $10 million payout. Still, how is it right not to tell them?"