$3.3M verdict after surgeon says 'sorry'

The problem may be that he said more

A $3.3 million verdict against a surgeon who apologized to his patient's family for her death is leading some outpatient surgery professionals to wonder if the push for apologies and transparency has a dark side. Are managers encouraging physicians to say something that actually will work against them in court?

Michael Knapic, DO, and his attorney certainly think so. They say he is being punished for expressing regret about his patient's death and that the Ohio apology statute intended to protect such statements has no value. Others say Knapic lost the case not because he said he was sorry, but because of what else he said.

The plaintiff, Leroy Davis of Glenmont, OH, sued Knapic, of Wooster Orthopaedics and Sports Medicine in Wooster, OH, after his 49-year-old wife Barbara Davis passed away following a lumbar microdiscectomy performed on July 23, 2004. The plaintiff accused him of severing Davis's left common iliac artery, lacerating her iliac vein, and "failing to timely diagnose and treat" the resulting medical condition, according to court records.

According to the trial transcript, Davis testified that, after the surgery, "Dr. Knapic … said the back surgery went OK but he nicked an artery, and he takes full responsibility and it was my fault." Later, the jury heard Davis's adult daughter, Pamela Bickel, testify that, after the surgery, Knapic "said as far as the back surgery, everything went fine, but … when they rolled her over that her blood pressure started to drop and they did an ultrasound and s[aw] that she was bleeding, that at some point an artery was nicked. … And he said, 'It's my fault. I take full responsibility.'"

During her pre-trial deposition, Bickel reported that Knapic said he was "sorry." However, that testimony was not submitted as evidence during the trial.

Broad interpretation needed, doctor says

Both sides involved in the case agreed that Ohio state law prohibits a healthcare professional's statement of sympathy as evidence in malpractice cases. They differed sharply, however, on whether admissions of liability or fault could be admitted.

Knapic's attorney, Christopher Humphrey, JD, of Canton, OH, argued that the definition of "apology" implies an expression of fault and admission of error. The state law intends to protect the physician-patient relationship following adverse medical events, he told the court, and so the legislature must have wanted Knapic to be able to say he took responsibility without that being used against him in court.

The plaintiff, however, argued that the law does not exclude a direct admission of fault as evidence. The trial court agreed. Knapic and his practice group challenged the verdict, but the Ohio Court of Appeals upheld the lower court's ruling. The court of appeals stated in its decision that the intent of the law is "to protect pure expressions of apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence, but not admissions of fault." (See the story at below for more on how to avoid admissions of fault.)

The court went on to explain that a "physician may speak with a patient or a patient's family members and express his heartfelt sympathy for their pain following a negative outcome without risk of that expression of sympathy being used against him in court." (See the story on p. 118 for more details from the appeals court opinion.)

The case will be appealed to the Ohio Supreme Court, says Christopher Humphrey, JD, an attorney with the law firm of Buckingham, Doolittle & Burroughs in Canton, OH. The appeals court interpretation of the Ohio apology law effectively renders the statute meaningless, he argues. "I think a risk manager has to advise people now that until this is clarified you can't really say anything because we don't know what is fair game," Humphrey says. "The court is essentially saying that you can say you're sorry, but anything after that is an admission against interests."

Knapic denies that statement is admitted liability to the patient's family, Humphrey says. The case should have hinged on whether the surgeon was liable for nicking the artery or whether that was a known risk of the procedure and the doctor did not violate the standard of care, he says. Instead, Humphrey says the trial was focused on what the surgeon said to the family afterward.

Under the rulings of the trial court and appeals court, Humphrey says, a doctor can say only "I'm sorry" and not much else. That is not realistic, he says.

"If you say anything other than 'I'm sorry that that happened,' you're essentially saying 'I violated the standard of care in a way that directly and proximately resulted in harm, and you're entitled to damages,'" he says. "In that case, the statute is meaningless. If you say you're sorry, and the family and asks 'for what?' and you say you can't comment any further, you've just made it worse."

Take a pause after the apology

Surgeons who already were skeptical about apologizing to patients might start citing the recent malpractice case against Michael Knapic, DO, as evidence that, rather than diminishing their malpractice risk, an apology could seal their fate in court. That's a misinterpretation of this case, says Doug Wojcieszak, founder of the Sorry Works! Coalition in Glen Carbon, IL, which promotes apologies from healthcare providers.

Telling the family he was sorry was not what lost the case for Knapic, Wojcieszak says. It was telling them he was responsible.

"The real issue is that physicians have to be careful about exactly what they say and can't blurt out confessions of liability in addition to saying they're sorry about the events that transpired," Wojcieszak says. "For me, a better statement following the back surgery would have been, 'The back surgery itself went fine, but when she was rolled over, the blood pressure dropped and an ultrasound discovered bleeding. I am sorry this happened. And we are going to learn how this happened.'

Wojcieszak goes so far as to say the Ohio apology statute and all others like it are unnecessary and can even be counterproductive when they lead to debates such as the one in this case. Some of the most successful disclosure programs in the country operate without apology laws, and even those that do have laws on their state books don't pay attention to them, he says.

"What's the secret to their success? Good event management. Teaching their staff to be proactive with empathy and customer service, but pause before admitting anything," he says. "Even if the staff believes a mistake was truly made, plenty of time down the road to cross that bridge with the patient and/or family. Hunches in the heat of the moment are often wrong, but once you've admitted fault, it's hard to go back over that bridge."

And when you try to backtrack, it will look like a cover-up, Wojcieszak cautions. "The patient or family will truly start to hate you, and litigation will soon follow," he says.

That pause is crucial, he says. Physicians must learn how to say they are sorry without babbling on to say it was their fault, which is a fine distinction sometimes but absolutely vital, Wojcieszak says.

Difference between 'sorry' and 'my fault'

Control what is said can be difficult for a healthcare provider in the highly stressful, emotional conversation with a patient or family member after a bad outcome, says Grena Porto, RN, MS, ARM, CPHRM, principal with QRS Healthcare Consulting in Hockessin, DE, and former president of the American Society for Healthcare Risk Management (ASHRM) in Chicago. For many people, their sympathy and regret compel them to take responsibility, and they say too much, Porto says.

"As human beings, we like to confess. We really buy into the notion that confession is good for you and makes you feel better," she says. Some providers attempt to make themselves feel better by taking ownership and responsibility, Porto says. "You can do that, but there's a risk, she says. "You can't unring the bell. You have to be prepared to live with that statement."

Porto says courts distinguished between a surgeon's apology and an additional statement of responsibility. Managers should urge physicians to consult with them for a primer on exactly what to say and what not to say before speaking with the patient or family, Porto says. (See the story, below, for more on how to word an apology.)

"Taking responsibility is a statement of fact, not an apology," Porto says. "Even saying 'I nicked an artery' is not necessarily an admission of liability, since that is a known risk of the procedure. But saying 'It was my fault' is hard to get away from."

Court weighs 'I'm sorry' vs. 'I'm responsible'

In the recent opinion from the Ohio Court of Appeals concerning a malpractice case against Michael Knapic, DO, by plaintiff Leroy Davis, the court carefully considered the question of what the Ohio legislature meant to protect with its apology statute.

"Dr. Knapic has argued that drawing a distinction between an acknowledgment of fault and an expression of sympathy violates the intent of the statute because the word 'apology,' as commonly defined, includes an expression of fault, admission of error, or expression of regret for an offense or failure," the court wrote in its opinion. "Dr. Knapic has also argued that the statutory intent behind Section 2317.43 is to avoid the obvious detriment to the physician-patient relationship that can follow an adverse medical outcome, especially if the doctor refuses to show some compassion and speak to the patient or the family. According to Mr. Davis, however, a direct admission of fault and responsibility is not what is intended by the plain and unambiguous words of the statute."

The court noted that among the 36 states that have adopted similar laws, the majority explicitly distinguish between statements of sympathy and admissions of fault or liability. Under California's apology law, for example, only "[t]he portion of statements … or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident … shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault … which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section."

Seventeen of the states that have explicitly distinguished between expressions of sympathy and admissions of fault have chosen to admit expressions of fault while excluding from evidence any part of a statement that expresses sympathy. On the other hand, eight of the states that have explicitly made the same distinction between expressions of sympathy and admissions of fault have chosen to exclude both types of statements from evidence.

"For instance, by adding the term 'fault' to the same litany of sentiments found in Ohio's statute, Colorado's statute makes it clear that both admissions of fault and expressions of sympathy are inadmissible. In Colorado, 'any and all statements … expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence which are made by a health care provider … to the alleged victim [or] a relative of the alleged victim … which relate to the discomfort, pain, suffering, injury, or death of the alleged victim as a result of the unanticipated outcome of medical care shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.'

Knapic's attorney argued that the word "apology" could reasonably include at

least an implication of guilt or fault. But the court noted that an apology does not always imply taking responsibility, saying that "when hearing that someone's relative has died, it is common etiquette to say, 'I'm sorry,' but no one would take that as a confession of having caused the death."

"Thus, looking to the rules of grammar and common usage, the appearance of the term 'apology' in Section 2317.43(A) creates some ambiguity. Reading the term in context with the litany of other sentiments to be excluded under the statute, however, leads us to believe the General Assembly did not intend to include statements of fault within the statute's ambit of protection. The other five protected sentiments clearly do not convey any sense of fault or liability, indicating that the statute was intended to protect apologies devoid of any acknowledgment of fault."

The court concluded that "[t]he statute was intended to protect pure expressions of apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence, without excluding from trial a medical professional's admission of fault for a claimed injury."

The entire text of the appeals court opinion can be found online at http://tinyurl.com/3lqzbem.

Must be 50 ways to say you're sorry

Paul Simon said there were 50 ways to leave your lover, and Grena Porto, RN, MS, ARM, CPHRM, says there are at least that many ways to say you're sorry ... without admitting responsibility.

Porto, a principal with QRS Healthcare Consulting in Hockessin, DE, and former president of the American Society for Healthcare Risk Management (ASHRM) in Chicago, rejects the idea that an apology naturally segues into an admission of guilt. It just has to be phrased correctly.

If you only say "I'm sorry" and leave it at that, then the patient is likely to ask, "Sorry for what?" And in the heat of the moment, a stressed and regretful physician might blurt out something like, "I'm sorry for nicking the artery and causing her to bleed out."

Above all else, don't use words like "my fault" or "my mistake" or "I made an error," she says. "Once you use a word like 'fault' in this scenario, you're behind the eight ball," Porto says. "You may regret that later."

In the immediate aftermath of a bad outcome, the right way to apologize is to say you're sorry for the situation and the effects on the patient, rather than stating as fact what caused that outcome, she says. A full statement of what happened and why might come later after a proper investigation.

These are some possible ways to apologize without admitting fault:

"I'm sorry this happened to you."

"I'm sorry for the suffering this caused you."

"I'm sorry this means you will have to undergo additional treatment."

"I'm sorry this didn't go as well as we hoped."

"I'm sorry this procedure was not a complete success."

"I'm sorry that you developed complications."

"I'm sorry that there was a bleeder during the surgery, and we did everything we could to repair it."