Simply apologizing is not enough to reduce malpractice liability risks, according to the authors of two recent studies.1,2 “Based on the effect of the laws on both medical malpractice litigation outcomes and healthcare outcomes, both papers concluded that apology laws have the opposite of their intended effect,” says Benjamin McMichael, JD, PhD, lead author of both studies.

Apology laws enacted by 39 states and the District of Columbia make apologies inadmissible as evidence in subsequent malpractice trials. The laws are based on the assumption that patients who receive apologies will not be as likely to take legal action. Researchers analyzed claims from a national malpractice insurer over an eight-year period and concluded that apology laws are not doing what they purport.

“They can both increase measures of medical malpractice liability risk, such as claim size and claim frequency, and physician behavior associated with higher malpractice risk,” says McMichael, an assistant professor of law at the University of Alabama. For instance, physicians in states with apology laws are more likely to practice defensive medicine.

Neither paper focused specifically on the ED. However, the results still are applicable to that setting. “I have no reason to suspect that apology laws would benefit these providers when they generate increases in the malpractice risk of other providers,” McMichael offers. EPs should be aware that apology laws vary in how much protection they offer. “Generally, the content of the apology determines what is admissible,” he says.

In states with “partial apology” laws, only statements of sympathy and condolence are inadmissible. In the small number of states with “full apology” laws, admissions of liability also are inadmissible. “Importantly, mistaking oneself for receiving the protection of a full apology law when only a partial apology law is in place is problematic,” McMichael cautions.

A well-meaning EP might include an admission of liability as part of an apology to a patient, believing all they say is protected. However, in a state with a partial apology law, the admission of liability would be admissible at trial. “States have generally been going toward more, not fewer, apology laws,” McMichael notes, adding that courts have not weighed in on apology laws extensively. “Medical malpractice litigation rarely ends up in a procedural posture where a court would publish an opinion.”

Only a few courts actually have addressed apology laws in published opinions, and they have all upheld them. “In fact, Ohio’s Supreme Court arguably took what was a partial apology law and converted it into a full apology law,” McMichael says.3

The study results do not undermine the existing evidence on apology and disclosure programs, says Florence LeCraw, MD, an adjunct professor in the Andrew Young School of Policy Studies at Georgia State University. Rather, the findings suggest that simply being allowed to apologize is not enough to reduce malpractice risk. “The bottom line is that the apology laws that most states enacted are counterproductive,” LeCraw argues.

Apology laws are simply “no substitute” for effective Communication and Optimal Resolution (CANDOR) programs, according to LeCraw. CANDOR laws have been passed in Massachusetts, Oregon, Iowa, and Colorado. These laws permit privileged discussions between physicians and patients after medical errors and allow for compensation offers (where appropriate). Although any hospital can implement CANDOR, the laws make it easier to do so, LeCraw says.

Many people mistakenly think that apology laws and CANDOR laws are the same thing. “This has caused confusion,” LeCraw notes. “CANDOR is not simply telling patients the truth. It is labor-intensive for the hospital and can require significant financial outlay.”

This misconception came up when a bill was introduced to pass a CANDOR law in Colorado. An opponent incorrectly testified that the research on apology laws showed that a CANDOR law would worsen liability outcomes. Proponents of CANDOR stepped in to correct the record and offered a paper showing the benefits of CANDOR.4

The idea of CANDOR is growing steadily but slowly, says Richard C. Boothman, JD, owner and principal of Boothman Consulting Group, LLC. Boothman is former executive director for clinical safety/chief risk officer at the University of Michigan Health System. Before CANDOR was implemented at the University of Michigan, claims had hovered around 260 to 300 for many years. After implementation, despite higher volumes, claimed dropped to 80 to 90 per year.5

“Most continue to equate the CANDOR concept only with early resolution of threatened and actual claims alone,” Boothman explains.

Savvy risk managers always have identified selected claims and attempted to avoid protracted and costly litigation. “That concept alone is not new. Yet, many who claim to be utilizing CANDOR are really only cherry-picking difficult claims to settle,” Boothman says.

For instance, some hospitals will not talk to patients until they complain or refuse to broach the topic of compensation until a patient asks for money. “Those practices are not CANDOR. Instead, CANDOR is an aggressive approach that has at its heart a desire to create an accountable clinical culture that promotes continual clinical improvement,” Boothman explains, noting that responding to patient injuries with honesty, transparency, and proactivity is an important piece. “But that’s not what drives the model. Claims savings are not the primary motivation for CANDOR.”

EPs often worry that CANDOR will get them into legal trouble, says Timothy McDonald, MD, JD, director of the Center for Open, Honest Communication at MedStar Institute for Quality and Safety Leadership. “For years, we’ve been told that when bad stuff happens, we shouldn’t say anything. The whole delay, deny, and defend culture is still present in a lot of places,” McDonald says.

The ED setting is ideal for CANDOR, which offers systemic approach to the response to unexpected harm, according to McDonald: “Almost everything that happens in the ED is unexpected. It’s why people come to the ED instead of other places.”

It is not easy to directly connect CANDOR to the absence of a lawsuit. “It’s hard to say that because you did this, you avoid a lawsuit,” McDonald explains. “But our data show that adopting this across the board, including the ED, will reduce claims and lawsuits.”

In McDonald’s experience, approximately 60% of claims and lawsuits “go away, with no indemnity payment, once you share the information.” There are some challenges that are unique to the ED setting:

The fact that ED providers have no pre-existing relationship at all with the patient or family. “What we do is identify who the really super communicators are, who can help in these circumstances,” McDonald says.

Lack of information on previous clinical encounters. “A lot of times in the ED, they’re taking care of a patient who’s had a ton of clinical care in the community. But they don’t have the full picture,” McDonald says. This puts the EP in a tough position when answering questions on what exactly went wrong. They are doing so with minimal information on all the other care the patient received and also are concerned about throwing their colleagues under the bus. “There are lots of questions that come up that they are not able to answer,” McDonald says.

Often, CANDOR in the ED is more difficult, Boothman acknowledges. There are times when patients who are injured because of their emergency care do not return. There is no continuing relationship with the patient.

“It is challenging sometimes to know if the care rendered in the emergency department was actually erroneous or unreasonable,” Boothman laments.

Sometimes, a “misdiagnosis” can be an early presentation that evolved only after the patient left the ED. “Patients are seen only in only short vignettes of their lives, in brief ED visits. This offers emergency medicine physicians few second chances to get it right,” Boothman says.

CANDOR relies on early identification of patient injuries and unintended clinical outcomes and the ability to reconnect with the patient. “In an emergency medicine setting, it becomes more challenging,” Boothman says. Still, CANDOR is an effective approach when patients experience unintended clinical outcomes after ED care. “CANDOR can be a powerful model to clear the air and help everyone understand what happened and why,” Boothman offers.

One ED patient presented early with generalized symptoms that later turned out to be a serious infection. “We found out about the case only after the patient presented elsewhere for care. That physician made some thoughtless remarks about how the early emergency physician ‘missed the boat on this one,’” Boothman recalls.

The second EP never bothered to see the records or contact the first EP to find out what evidence was available at the time of the ED visit before making the disparaging remarks. It was only after the patient hired a lawyer that the matter finally was aired.

The providers met with the patient and his lawyer. As a group, they reviewed the early signs that were present when the patient presented to the ED. They explained why the diagnosis could not reasonably have been made at that time. Both the patient and his lawyer were satisfied with the explanation. Later, it was discovered that the patient sought out the EP at the second hospital and confronted him about the misleading statements. “I remember feeling that we should also have confronted that physician. But the doctors involved did not want to ‘stir the pot,’” Boothman reports.

The group had established a constructive relationship with that patient’s lawyer. “He knew we were approachable, that we would be brutally honest, and that if we had made a mistake, a lawsuit would not have been necessary,” Boothman notes.

Such a rapport is one benefit of adopting a CANDOR approach consistently, instead of using it only for selective cases where lawsuits appear imminent. “You quickly establish a reputation for credibility and ethics. That goes a long way to preventing litigation,” Boothman offers.

The patient’s lawyer already knew he could call and request an honest meeting before filing a lawsuit. “Under the CANDOR approach, we were also known to defend vigorously if we did not treat someone unreasonably,” Boothman notes.

If it were not for this mutual understanding, the EP might have found himself defending a groundless case caused by another physician’s unfortunate comments. “That credibility is a key component of the systematic consistency that arises from always being honest and following a principled approach,” Boothman says.

REFERENCES

  1. McMichael BJ, Van Horn RL, Viscusi WK. “Sorry” is never enough: How state apology laws fail to reduce medical malpractice liability risk. Stanford Law Rev 2019;71:341-409.
  2. McMichael BJ. The failure of ‘sorry’: An empirical evaluation of apology laws, health care, and medical malpractice. Lewis & Clark Law Review 2018;22:1199.
  3. Ohio Rev. Code Ann. §2317.43. Available at: http://bit.ly/2KTIld5. Accessed July 1, 2019.
  4. LeCraw FR, Montanera D, Jackson JP. Changes in liability claims, costs, and resolution times following the introduction of a communication-and-resolution program in Tennessee. J Patient Saf Risk Manag 2018;23:13-18.
  5. Kachalia A, Sands K, Niel MV, et al. Effects of a communication-and-resolution program on hospitals’ malpractice claims and costs. Health Aff (Millwood) 2018;37:1836-1844.