Sitting down to talk can keep patients from suing

Plaintiff lawyers often "helpful, not harmful"

Staci Kusterbeck, Contributing Editor

At Ann Arbor-based University of Michigan Health System, a "full disclosure of unanticipated outcomes" policy has prevented several threatened malpractice lawsuits involving ED patients. "Emergency medicine cases are difficult because you don't usually get a chance to talk to people who are unhappy but haven't already gone to a lawyer," says Richard C. Boothman, the organization's chief risk officer.

Even so, open communication with unhappy patients and their lawyers has stopped several from suing. "We have had a number of threatened emergency medicine cases averted by exchanging information, even to the point of offering the patient's lawyer the chance to interview the doctor involved," says Boothman.

Most patients contact lawyers not out of a "lottery" mentality but because they want answers, says Boothman. He notes that "full disclosure" doesn't always mean an apology—in many cases it takes the form of an explanation.

The organization committed to three principles:

  • If care was not appropriate and it caused a patient harm, the patient is compensated reasonably without delay.
  • If care was reasonable and/or did not cause any injury, staff are defended vigorously. "Doctors and nurses work in inherently dangerous environments where even the most simple decision—like giving child antibiotics for an ear infection—can result in a life-threatening complication," says Boothman. "If after a thorough evaluation you are confident that your care was appropriate, why not say so upfront before the wheels of a lawsuit are in motion?'
  • Patient experiences are considered a valuable resource for continual improvement in the quality of care and patient communication. "We work hard to see patient complaints as a gift —an opportunity to listen, explain, apologize where warranted and most importantly, correct that which should be corrected," says Boothman.

Talk before suit is filed

When a patient or his/her attorney comes forward with a complaint, both sides benefit from a free exchange of information before anyone is sued, says Boothman. "At that point in time, our interests are identical to the patient's interests. We both want to know what happened and whether our care was reasonable or unreasonable," he says.

The patient and lawyer won't want to file a lawsuit only to lose the case after investing a lot of money, time, and emotion into it, while the hospital doesn't want to defend a case only to find out it should have been settled. "Plaintiff lawyers are often helpful, not harmful, in this situation," says Boothman. "Most lawyers thank me even when we tell them they don't have a case, because it keeps them from making a costly mistake."

But the dynamics change once a lawsuit is filed, since the attorney is ethically obligated to pursue it as long as the client wants to continue, so long as he has an expert to support the case. "Once they invest money, the tendency to keep the case going is huge, if for no other reason than to get their money back," says Boothman.

In one case, a girl was brought to the ED with difficulty breathing after her tracheostomy had been resized. The ED physician wanted to keep her for further evaluation, but the mother left against medical advice when the child became stable and calm. The girl was found in the morning dead, and the parents contacted a lawyer. The ED physician sat down with the patient's lawyer and reviewed every step in the process.

"Several details about the child and her condition when she was found did not appear in the medical record. So we sat at length and went over all the details and all the reasons why the doctor did what she did," says Boothman.

After the discussion, the plaintiff's lawyer became convinced that there was nothing negligent in the child's care. "I'm convinced that the doctor's own emotional response—she was obviously deeply saddened by the baby's death—made as much of a difference as any information we were able to give," says Boothman.

In some cases, patients may simply want to know that something has been done about their complaint. In a case of failing to diagnose ectopic pregnancy, the patient was persuaded that the ED was not at fault because the OB-GYN service had already accepted the referral. "That experience caused us to tighten up both documentation and follow-up protocols at that out-lying hospital," says Boothman.

ED physicians like policy

The response by the ED staff and physicians has been "overwhelmingly positive," according to William G. Barsan, MD, chair of the department of emergency medicine.

One reason is that physicians feel less "victimized" and have a greater sense of control because they are included in the process from the very beginning. After the physician is asked for input, all cases are brought before the medical liability review committee, which consists of medical staff members.

"This is essentially a jury of your peers, and they are very honest," says Barsan. "Regardless of the fact that you may be a fellow faculty member, if they don't think the standard of care has been met they will say so."

Although ED staff are free to consult with risk managers, there is no hard and fast rule that they must do this before speaking with a patient. "If appropriate, most of us usually like the opportunity to do something like that," says Barsan.

For instance, if the patient received 250 mg of an antihistamine instead of the 50 mg that was ordered, physicians will generally tell the patient about the mistake right away. "We tell them what happened, why it happened and what we're going to do to make sure it doesn't happen again," says Barsan. "Just because patients don't notice a mistake, it's not necessarily the right policy not to bring it to their attention."

The number of lawsuits has decreased in hospitals with full disclosure and apology protocols, and there is a reduction in settlements and litigation expenses, says Joseph J. Feltes, a Canton, OH-based attorney with Buckingham, Doolittle & Burroughs, LLP.

"People appear much more willing to forgive if physicians and hospitals are forthcoming and candid when discussing an unexpected clinical outcome, and express a genuine statement of apology, sympathy, commiseration, condolence, or compassion," says Feltes.

Consider the following items before talking with your patient about a medical error:

  • Know your state laws.

A growing number of states have passed "I'm Sorry" legislation, which means that sincere expressions of condolence cannot be introduced as evidence in a trial. At press time, these states are Arizona, California, Colorado, Florida, Georgia, Hawaii, Idaho, Illinois, Maryland, Massachusetts, Montana, North Carolina, Ohio, Oklahoma, Oregon, Texas, Tennessee, Vermont, Virginia, Washington, West Virginia and Wyoming.

Since state laws vary, it's important to know exactly what is protected under your state's law. For example, Ohio's statute protects general expressions of sympathy such as "I'm sorry things did not go as we had hoped," whereas Colorado's law goes a step farther by allowing an ED physician to admit fault and accountability, which cannot be introduced at trial.

  • Get advice.

If you have any concerns about meeting with a patient or their family, first contact your risk manager, legal counsel, or insurance carrier for guidance, says Feltes.

"The situation for an ED physician is different from one where there is a long-standing relationship between the physician and the family," adds Feltes. The ED physician needs to be involved and participate in the discussion, but it might be more appropriate for the hospital's risk manager to take the lead, he says.

  • Contact the patient promptly.

Once the patient files a lawsuit, the "I'm Sorry" statutes no longer apply. This is one reason to contact the patient sooner rather than later, says Feltes. "The longer a physician waits, the more uncaring and evasive he or she may be perceived as being. Time allows feelings to fester and anger to mount and harden," he says.

However, Feltes recommends waiting a day or two for emotions to settle down, giving you time to obtain legal advice and do a more thorough investigation of the facts.

  • Don't necessarily admit wrongdoing.

Be factual, candid, sincere and forthcoming in explaining what happened and answering questions, says Feltes. "It is not necessary for physicians to 'fall on their sword' by accepting responsibility or blame when they did not make a mistake," he says.

Sometimes the only thing you need to say is a statement such as "I'm sorry about your loss," says Feltes. "Expressions of sympathy do not equate to admissions of wrongdoing," he notes.