Patients Decide Not to Sue After Hearing EP’s Honest Explanation for Bad Outcome
September 1st, 2016
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An ED patient experienced an unexpected bad outcome. Will anyone talk openly about what happened and apologize, or simply wait for a notice of intent to sue?
“Although not frequently taught or discussed, the medical apology is an underutilized, low-cost, high-yield skill all medical providers should feel comfortable performing,” says Heather A. Heaton, MD, senior associate consultant in the Department of Emergency Medicine at Mayo Clinic in Rochester, MN.
Heaton says emergency physicians (EPs) contend with more “apology pitfalls” than physicians in other specialties. Finding a good time to have this kind of conversation in a crowded, frenetic ED is difficult, if not impossible.
“Apologies given to a stunned family may not be heard. Apologies that feel rushed will be perceived as insincere,” Heaton says.
EPs, fearing legal or reputational repercussions, often make excuses, shift blame, or use the word “if” when apologizing.
“This only serves to water it down,” Heaton warns. “It triggers defensiveness on the part of the listener or other team members.”
More Important in ED
Apologies increased settlement speeds by 20% and lowered average claim payments by $32,000, found one study of malpractice payments recorded in the National Practitioner Data Bank.1
“In follow-up work, we dig deeper by seeing how that number varies by case type,” says study author Benjamin Ho, PhD, an associate professor of economics at Vassar College in Poughkeepsie, NY.2
The researchers were not able to separate the data by specialty, “but we did find that apologies were most effective for cases involving the areas of obstetrics and anesthesia, for cases involving infants, and for cases involving improper management and for failures to diagnose,” Ho says.
There is some evidence that EPs’ lack of a prior relationship with patients actually makes apologies more important.
“In my lab research with experimental subjects, I show that apologies are most effective when you first meet someone and are uncertain about how much you trust that person,” Ho says.3
Apologies can help correct bad first impressions, according to Ho, who says, “The less someone knows you, the more small things like apologies matter. Once you know someone well, then a single apology is less likely to change the course of the relationship.”
The patient’s anger and negative reaction to the EP’s perceived demeanor spurs many lawsuits. “That is why apologies are so effective,” Ho adds.
Growing, but Slowly
There are far fewer malpractice claims at the University of Michigan Health System since the implementation of a disclosure, apology, and offer program in 2001. The system reduced average legal expenses by 50% and decreased open-to-close time for claims to 10 months from more than 20 months.4
“This approach made sense to me in 2001. It strikes me as odd that in 2016, it doesn’t make sense to more people,” says Richard C. Boothman, executive director of clinical safety and chief risk officer. “A big impediment is that there is a significant industry that is dependent on litigation.”
Boothman believes it’s important for EPs to understand that the intent of apologies is not just to stop malpractice suits.
“The Michigan model has been superficially understood, or misunderstood,” he says. “It’s easy to pull the malpractice metrics. But the reason for apologies is not to intercept a malpractice case.”
The ultimate goal in the ED setting is for EPs to be accountable in a sincere, highly principled way, as a pathway to improve care. “The real focus of what we do is to restore accountability for true mistakes that cause injuries,” Boothman says. “What we’ve done is to normalize honesty.”
Boothman attests that sincere apologies and open discussions yield positive effects that far transcend financial benefits.
“I see headlines all the time that [indicate that] apologies save money. Thankfully, it does, but that’s not the reason we do it,” he says.
During litigation, the exchange of information between plaintiff and defendant strictly is adversarial.
“You end up dealing with this in a courtroom setting, which is unnatural,” Boothman says. “Instead of conversations, you have cross-examinations. All in the context of a contest.”
Midway through litigation, each side has invested a great deal of money on expert witnesses, and they’re unlikely to back down. At that point, Boothman says, “Hospitals almost always engage in ‘deny and defend,’ whether or not they are proud of the care involved.”
Both the plaintiff and defense find themselves pushed down an adversarial path, with increasing expenditures of time and money.
“That makes it harder to back off of a position, or have an honest discussion,” Boothman says. It’s also a barrier to quality improvement.
“I don’t believe, and have never believed, that you can say publicly, ‘We’re going to defend this care,’ and then privately make improvements,” Boothman says. “Those things just don’t coexist.”
EDs face some unique challenges when it comes to apologies. One is lack of a pre-existing relationship with patients.
“This puts EPs at a disadvantage to make right the mistakes they’ve made in the past until it’s already adversarial,” Boothman explains.
It’s easier if the problem becomes apparent when the patient is still in the ED. At the University of Michigan, 17% of ED claims allege the EP failed to perform a procedure properly.
“We can talk to the patient right away when something like that happens, and manage expectations,” Boothman says.
Missed diagnoses account for 57% of ED claims at the University of Michigan. Many of these don’t come to the hospital’s attention until a lawyer is involved.
“Those are the ones that are most challenging to discover and get involved in right away,” Boothman says. “But that still doesn’t stop us from being proactive.”
In Michigan, a six-month pre-suit notice period is required, making the ED aware that the patient intends to sue.
“That does still give us time to intervene in a principled way, explain when the care was reasonable, apologize for mistakes, and settle those claims that need to be settled,” Boothman says.
Even if news of an ED misdiagnosis comes by way of an attorney, it’s still addressed early.
“Before they’ve spent a lot of money, before they’ve gotten anchored in a narrative that may not be accurate, we correct misconceptions, explain, or offer an apology where warranted,” Boothman adds.
Some plaintiff attorneys feel grateful someone talked them out of pursuing an unwinnable case.
“A lot of things are not captured in the medical record,” Boothman explains. “More information is needed to understand a patient encounter. We can fill that in.” He notes this is especially true with electronic medical record documentation consisting mainly of checkboxes.
Meetings are not always pleasant. Some patients angrily accuse the EP, and EPs sometimes become defensive. “But it’s way better to do it outside the construct of litigation,” Boothman recommends.
The EP gets a chance to deliver a face-to-face explanation of decisions that were made, and convey his or her thought process. Most patients are grateful for an honest explanation, and some say, “I wish I’d known that. I’d have never gone to a lawyer.”
“It’s not unusual to put the doctor they are threatening to sue in the room, and the patient turns to the lawyer and says, ‘I don’t want to go forward with the claim,’” Boothman says. “That has happened more times than I can count.”
The reverse also has happened. “We’ve had our own blind spots,” says Boothman. The plaintiff attorney explains the problems that their EP reviewer saw with the care. In a small number of cases, litigation occurs, but even then there are advantages to open communication. “The beauty of it is even in the minority of cases where we proceed to litigation, both sides do it with open eyes,” Boothman adds.
In typical malpractice litigation, EPs’ voices are heard when talking to a defense lawyer behind closed doors, or during a deposition when EPs can’t let their guard down.
“With the vast majority of cases getting settled, most will never get their day in court,” Boothman says. “They become embroiled in what they see as a lawyer’s game.”
For the patient and EP, the matter is very personal. Not so for the plaintiff attorney.
“It’s a business equation. ‘Can I find experts to support me? If I can, I’m going to make the case,’” Boothman says. “What we try to do is restore that personal connection.”
- Ho B, Liu E. Does sorry work? The impact of apology laws on medical malpractice. J Risk Uncertain 2011;43:141-167.
- Ho B, Liu E. What’s an apology worth? Difference-in-differences analysis of state apology laws on medical malpractice payouts. J Empir Leg Stud 2011;8:179-199.
- Ho B. Apologies as signals: With evidence from a trust game. Management Science 2012;58:141-158.
- Kachalia A, Kaufman SR, Boothman R, et al. Liability claims and costs before and after implementation of a medical error disclosure program. Ann Intern Med 2010;153:213-221.
- Richard C. Boothman, Executive Director, Clinical Safety, Chief Risk Officer, University of Michigan Health System, Ann Arbor. Phone: (734) 764-4188, ext. 44188. Email: [email protected].
- Heather A. Heaton, MD, Senior Associate Consultant, Department of Emergency Medicine; Instructor of Emergency Medicine, Mayo Clinic College of Medicine, Rochester, MN. Phone: (507) 255-4399. Fax: (507) 255-6592. Email: [email protected].
- Benjamin Ho, PhD, Associate Professor, Economics, Vassar College, Poughkeepsie, NY. Phone: (845) 437-7396. Email: [email protected].
Plaintiff attorneys realize claims are unwinnable.
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