By Kevin Klauer, DO, EJD
Chief Medical Officer - Emergency Medicine Chief Risk Officer; Executive Director, Patient Safety Organization, TeamHealth
Dr. Klauer reports no financial relationships relevant to this field of study.
Showing compassion and expressing remorse is a humanistic attribute that most patients would expect of their providers. However, due to concerns of medical legal risk, such sentiments are rarely, if ever, expressed.
In 1986, Massachusetts enacted the nation’s first apology law in.1 As many other states followed suit, this fundamental shift in philosophy served as a signal to providers that it was now safe to apologize to patients, without the possibility of retribution by way of admissibility of their statements in professional liability claims filed against them. Unfortunately, many did not read the fine print. Just like other terms used in daily communication, “apology” has a specific meaning in a legal context and varies from state to state; all apologies are not created equal. Most importantly, many statutes do not offer protection from admission of fault, but merely expressions of sympathy (i.e., expressions, gestures, actions, general sense of benevolence). The Massachusetts statute only protects expressions of sympathy. It was not until 2004 that Colorado adopted a statute prohibiting admissibility of admissions of fault.2
The National Conference of State Legislatures published a list of the nation’s apology statutes in 2014.
“Thirty-six states, the District of Columbia, and Guam have provisions regarding medical professionals making apologies or sympathetic gestures. Of these states, six have provisions that specifically relate to accidents.”3
Presumptions? Avoid Them
The only thing worse than not having protections for apologies is the presumption of protection that you do not have, which is the situation the imcomplete protection of most apology laws create, covering only expressions of sympathy.
However, protection of expressions of sympathy still provides valuable medical legal protection, provided the practitioner understands the details and limitations of the statute in their state.
For example, the Ohio State Supreme Court upheld a trial court’s determination that such an expression of sympathy was inadmissible, despite the fact that Ohio’s statue was enacted three years after the patient’s date of service.
“In Estate of Johnson et al. v. Smith et al., a patient claimed that her surgeon’s comments after a bile duct surgical injury were an admission of guilt and should be admissible in her medical liability lawsuit. But the state high court ruled that the doctor’s sentiments were precluded from becoming evidence by the state’s apology statute, even though the incident happened before the law took effect.”4
Despite the variability of different states’ statutes and the limitations of most, there is great value in expressing compassion to patients.
We should do so carefully, and in states not protecting admission of fault, limit our individual statements to expressions of sympathy and not create new liability exposure by expanding to an admission of fault.
Regardless of whether your state considers admission of fault inadmissible, it is recommended that admissions of fault be carried out by trained personnel in a structured fashion, outlined in hospital policy.5 As such disclosures are associated with significant medical legal implications, cost implications, and potential hospital operational changes, a decision to admit fault should be guided by carefully crafted policy and not left to the individual practitioner to decide.
Furthermore, the content of such an apology has to be carefully considered and that message carefully delivered. Per Gallagher, and a patient survey he published in 2006, the elements that were most important to patients and families were6:
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Disclosure of all harmful errors;
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An explanation as to why the error occurred;
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How the error’s effects will be minimized;
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Steps the physician (and organization) will take to prevent recurrences.
Determining Errors to Disclose
Also of importance, and noted in Gallagher’s body of work, is which errors should be disclosed. From the medical ethics perspective, the provider should not determine which errors to disclose.
Rather, if an error has occurred, it should be disclosed. Just because the patient may not otherwise know of the error or even if no harm has occurred, it is not the provider’s right to limit the information to which the patient is entitled.
There are additional reasons to consider disclosing an error, providing an apology, and even admitting fault. Perhaps most compelling is the impact this may have on professional liability exposure. American Medical News cited case examples of programs that reduced the average indemnity paid and frequency of claims.7 “From 1990 to 1996, the Lexington VA had 88 claims and paid an average $15,622 per claim, compared with a $98,000 average at VA hospitals without ‘I’m sorry’ policies.
“Medical centers affiliated with the University of Illinois at Chicago, Stanford University, Johns Hopkins University, and Harvard University also have adopted ‘I’m sorry’ policies. So have Kaiser Permanente’s medical centers, the Catholic Healthcare West system, and the Children’s Hospitals and Clinics of Minnesota. COPIC Insurance Co., a medical liability carrier in Colorado, started openly communicating about medical errors in 2000 and reimburses patients for costs of up to $30,000.”7
In 2002, the University of Michigan implemented a procedure to disclose errors, apologize for them, and to compensate the patient. They reported a $2 million annual reduction in litigation expenses and a 40% reduction in new claims. Their average cost of a claim dropped from $405,921 to $228,308.8
In addition to the humanistic benefits to the patient, their family, and the providers, as well as the potential positive impact on claims severity and frequency, regulatory agency requirements for disclosure provide another strong incentive to implement such programs. In 2002, The Joint Commission announced the requirement to disclose medical errors to patients (e.g., Sentinel events).
Despite the challenges associated with the variability of state statutes addressing apologies, providers should be encouraged to show compassion and express concern and sympathy toward their patients. Although providers must be aware of the details of the statutes in the states in which they practice, a carefully worded show of concern or expression of sympathy does not necessarily result in significant risks for liability exposure to the provider, particularly when such humanistic behaviors may improve the relationship with the patient and their family, lowering the risk of a claim or lawsuit. However, when it comes to an admission of fault, this should be performed carefully and in conjunction with the hospital and physician group risk managers and in accordance with established hospital and/or group policy.
[Editor’s note: To learn more about which states have apology laws, please click here.]
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Cohen J. Toward candor after medical error: The first apology law. Harvard Health Policy Review 2004;5:21-22.
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CRS §13-25-135: Colorado Law Governing Apology for Unanticipated Outcome in Medical-Legal Proceeding.
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National Conference of State Legislatures. Medical professional apologies statutes. Jan. 21, 2014. Available at http://www.ncsl.org/research/financial-services-and-commerce/medical-professional-apologies-statutes.aspx. Accessed Sept. 8, 2015.
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Gallegos A. Learn when it’s safe for doctors to say they’re sorry. American Medical News. May 20, 2013.
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Gallagher TH, et al. Disclosing harmful medical errors to patients. N Engl J Med 2007;356:2713-2719.
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Gallagher TH, et al. Choosing your words carefully: How physicians would disclose harmful medical errors to patients. Arch Intern Med 2006;166:1585-1593.
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O’Reilly KB. “I’m sorry”: Why is that so hard for doctors to say? American Medical News. Feb. 1, 2010.
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Kachalia A, et al. Liability claims and costs before and after implementation of a medical error disclosure program. Ann Intern Med 2010;153:213-221.
