Take a pause after the apology

Physicians 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 a 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, there is 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.

Fault comment was the real problem

Such control can be difficult 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. "That's what I think that was, an attempt to for himself to feel better by taking ownership and responsibility. You can do that, but there's a risk. You can't unring the bell. You have to be prepared to live with that statement."

In the Knapic case, Porto says the court correctly distinguished between the surgeon's apology and his additional statement of responsibility. Risk 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 on p. 112 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. The apology itself is not the reason this guy was found liable."