Conventional wisdom holds that any EP who admits fault (or even displays empathy) probably will end up in court hearing their own words used against them. Still, a growing number of states are passing apology laws to protect against this possibility.
“More and more states are adopting apology laws because the research shows that they work,” says Samuel D. Hodge, Jr., JD, a professor of legal studies at Temple University.
Richard Cahill, JD, says, “For many years, the medical community has been accused of refusing to discuss adverse events as part of a perceived conspiracy of silence.” Many EPs fear that compassionate remarks will be used against them, even those practicing in states with apology statutes. Although 39 states, plus the District of Columbia and Guam, have instituted such laws, protections vary widely.1 “Congressional efforts to enact legislation that would protect such discussion with patients and their families from later use in civil litigation have, unfortunately, thus far been unsuccessful,” notes Cahill, vice president and associate general counsel at Napa, CA-based The Doctors Company.
EPs are not always familiar with the protections (or lack thereof) afforded by their state’s statute. “The continuing litigious nature of our culture should serve as a reminder to physicians that they must still be on the defensive whenever a suboptimal result occurs,” Cahill cautions, noting that apology laws generally fall into one of three categories:
- complete protection for statements regarding empathy, regret, condolences, sorrow, commiseration, benevolence, and even responsibility or fault;
- limited protection for statements concerning sympathy while specifically excluding statements of fault or liability;
- limited protections for expressions of sympathy, but without any references to how statements acknowledging personal responsibility will be treated.
Cahill says EPs should keep in mind that “as time passes, memories dim, and the prospect of litigation increases, recollections of what exactly was said and by whom likely will vary at deposition or at trial.” A family member may testify the EP stated, “It was all my fault. We made a terrible mistake.” In reality, the EP may have simply said, “I’m so sorry you are going through this.”
To protect against this possibility, Cahill recommends EDs develop a policy on how to conduct conversations after an adverse event. These should address who should be present, the scope of what should be said, and specifics on what should be avoided. Cahill advises against ED providers making these statements:
- blaming a colleague for an adverse or unexpected outcome;
- admitting care was somehow negligent or inadequate;
- suggesting that different or additional treatment would have prevented the untoward consequence;
- offering any opinions that are not based on personal knowledge or reasonable medical probability.
Cahill says patients and families are “more willing to forgive an unexpected outcome and reject contacting a lawyer to get answers where the conversation is honest, direct, respectful, and conducted in a professional manner.”
There is not much chance to build trust with patients in the fast-paced ED setting. Still, that does not mean apologies are not possible. Quite the contrary, says Doug Wojcieszak, founder of the Sorry Works! Coalition. “The value of empathy — and apology if there’s been a mistake — is more needed in the ED than we thought years ago. Bad things can happen. Unfortunately, you don’t have relationships to fall back on.”
Many ED providers assume apologies are not feasible due to limited time with patients and family. Wojcieszak points to customer service-oriented industries such as airlines or hotels, where words like “I’m sorry” can quickly turn bad situations around.
“If apologies are absent, it can take a bad situation and make it worse,” Wojcieszak says. “Since time is limited, when things do go bad, you’ve got to work really fast.”
The precise extent of legal protections offered by statutes is largely irrelevant, according to Wojcieszak. “If you talk to defense counsel, they’ll say it makes ED doctors more comfortable if they think it can’t be used against them,” he acknowledges. However, the larger picture is that the EP is conveying compassion to the patient or family. If litigation occurs, this paints a picture of a caring EP. The important thing, Wojcieszak says, is that when something goes wrong and a credible review shows a mistake was made, the EP should return to the family to make things right. “If you go through all that, and you still get sued ... you should be more than happy to have defense counsel put you on the stand to tell what you did,” Wojcieszak says.
The EP defendant would be able to respond to questions such as: Did you explain what happened? and Did you try to resolve it fairly and equitably without going to court?
“That’s the kind of stuff that gets a jury to say, ‘What the devil am I here wasting my time for? Why couldn’t y’all just figure this out?’” Wojcieszak adds.
This kind of testimony makes a plaintiff appear greedy — and the EP appear very sympathetic. Wojcieszak recommends these practices in the ED setting:
• Make statements of empathy freely, without worrying too much about the particular wording of statutes. “ED doctors are worried they will get sued if they say something, but they never look at the other side of the equation: ‘If I’m quiet, will the family suspect I’ve done something bad?’” Wojcieszak says.
• Offer to help while the patient or family is still in the ED. EPs might ask, “I see you’re upset. How can I help right now?” This keeps the lines of communication open. ED staff can assist with phone calls, facilitating access to hospital chaplains, food, or lodging.
• Give a specific timeframe for when the family will be contacted with more information. Statements such as “We need to figure out what happened. We are going to get back to you by 2:00 tomorrow” let people know when to expect a response, making it less likely they will contact an attorney.
• Have someone else present during disclosure conversations. If the EP, or whoever is speaking, misspeaks or falters, “which can happen, the second person can save the day,” Wojcieszak says. This can be a nurse, chaplain, risk manager, or patient advocacy employee.
Many ED providers remain hardwired to avoid anything that sounds like an apology at all costs. This wariness is rooted in some incorrect assumptions.
“What they think is true about how lawyers work is usually not,” says Wojcieszak, noting that when plaintiff attorneys weigh whether to pursue an ED malpractice claim, they are looking at whether the standard of care was met and the amount of potential damages.
“But they also look for what I call ‘gotcha’ factors,” Wojcieszak continues. These are things that can really make a jury angry, such as insensitive ED nurses or an arrogant EP who turned his or her back on a devastated person who just wanted answers.
“If the medicine is close or there is not a lot of value, these are factors that can make the jury want to send a message,” Wojcieszak says.
On the other hand, says Wojcieszak, “If I have five or 10 other cases on my desk to pick from, and the ED chart says the doctor apologized and did all the right things, that might not be my favorite.”