Will patient sue if you apologize? Evidence suggests opposite is true

Med-mal claims cut by more than half

Physicians often fear patients will sue if they apologize for errors that caused harm, but anecdotal evidence and published data contradict this belief.

The disclosure, apology, and compensation program used at University of Michigan Health System (UMHS) in Ann Arbor has dramatically reduced the number of malpractice claims, from 260 pre-suit claims and pending lawsuits in 2001 to 100 currently, and legal expenses and open-to-close time for claims were cut by half.1,2 Current claims number only 63, with a very small percentage being actively litigated, reports Richard C. Boothman, JD, the organization's chief risk officer.

"Over the past 10 years, our clinical activity has risen considerably," adds Boothman. "So we've not only seen a reduction in overall claims numbers, but as a percentage of clinical activity, the drop is even more significant."

With nearly 20,000 incident reports in 2012, up from 2,400 in 2006, the organization is capturing many more incidents. "It is crystal clear that we've weeded out most of the groundless claims and isolated true mistakes. The vast majority of what we recognize as claims result from our own staff reporting," says Boothman. "We're not waiting for lawyers to bring these incidents to our attention."

Boothman says patients typically sue caregivers because they don't get answers, because they want to be sure that medical mistakes don't happen to anyone else, because they want someone to take responsibility, and because when appropriate, patients expect an offer of compensation for the harm done. "Lawyers bring to the table their own priorities and interests in getting paid," says Boothman." Many patients who turn to the legal system report that they felt abandoned when they suffered a complication and everyone from the healthcare side ran for cover."

A "deny-and-defend" approach prevents physicians from admitting that patient safety problems exist and creates the impression that doctors are victims of a broken legal system, according to Boothman.

"When unanticipated clinical outcomes happen, we not only deal with the claims threat on our own terms, but we also move forward directly on the safety issues," says Boothman. "Ultimately, this is the very best and most lasting antidote to malpractice."

Patients just want answers

Physicians' inability to acknowledge problems with patient safety forces patients to sue to get answers, he explains. "Once the lawyers get involved, any effort to openly and honestly confront the safety problems is effectively chilled, out of fear of impairing the legal defenses," Boothman says.

He doesn't believe that lack of training accounts for the failure of doctors to be honest about their mistake. In fact, Boothman says, it is difficult for physicians who have devoted their lives to helping others through medicine to admit they've harmed someone through a mistake. "No matter how much training a caregiver gets, spending a day in a seminar is not adequate support when it happens to them, sometimes years later," he says.

Instead, physicians can obtain support 24 hours a day from the hospital's Office of Clinical Safety, which has several senior employees who have been specially trained in mediation techniques and evidence preservation. "These situations can be charged with emotion, and demand a grasp of facts that an individual cannot have on his or her own," Boothman explains. "Even the most apparently clear situation often turns out to be different from what it appeared at first."

UMHS' physicians are encouraged to take these steps:

  • Always take care of the patient's and family's needs first and foremost.
  • Always show empathy and work to suppress defensiveness.
  • Pledge that "we will work to understand what happened" honestly.
  • Call for help, if it even crosses their minds that they might need assistance.

"A badly-done disclosure is worse than a well-done one delayed by a day or two," warns Boothman. "I tell physicians all the time that you can't 'un-ring the bell' once they've told a patient something that turns out not to be accurate."

Collaboration needed

Robert M. Wachter, MD, professor and associate chairman of the Department of Medicine at University of California — San Francisco, says the trend toward disclosing errors "has been one of the most interesting developments in the patient safety field, and one of the most surprising."

"The orthodox thinking, until about five years ago, was that we had to go off in our corner, and patients and their lawyers would go off into another corner, and we'd all duke it out," he says. Many physicians were surprised by data from the Veterans Affairs (VA) Medical Center in Lexington, KY, showing liability claims costs that were the same or lower than those of a comparison group of similar VA hospitals, adds Wachter, but didn't believe it was relevant to more typical hospital systems.3,4

Even with compelling evidence from large academic hospital systems such as UMHS and University of Illinois Medical Center, some physicians in small groups or community hospitals remain skeptical that the findings would apply to their practices, Wachter says, "but the data are hard to refute. There is money on the line. Both the insurers, and in some ways, the insured, have a real financial incentive to do this well."5

Researchers found strong support for the Disclosure, Apology, and Offer model among key stakeholders at Massachusetts hospitals, who cited its benefits for the liability system and patient safety.6 However, disclosure and apology programs have largely taken off in large medical centers and mainly in those that are self-insured, says Peter B. Smulowitz, MD, one of the study's authors and an emergency physician at Beth Israel Deaconess Medical Center in Boston.

"This is because they have the resources to manage the programs," he says. "It is much easier to operate this when you are the insurer as well and, thus, don't have to coordinate with an outside insurer."

Disclosure programs are much more challenging for physicians in smaller practices, he says, and "in many cases, they will need to collaborate with insurers or larger organizations."

Twenty percent of physicians surveyed in a 2012 study said they had not fully disclosed a medical error to a patient out of concern for malpractice lawsuits.7

This finding wasn't surprising, says study author Eric G. Campbell, PhD, director of research at Massachusetts General Hospital's Mongan Institute for Health Policy in Boston. Campbell adds that one obstacle to disclosure is that mistakes in healthcare are often multifactorial. "Often, there isn't a single person who can understand the whole thing without doing an investigation," he says.

What motivates insurers?

Insurers often discourage doctors from being honest with their patients, adds Boothman. "Most insurers are afraid of losing control over the claim," he says. "Increasingly however, we are understanding that the old ways of protecting the claim are really counterproductive, even from the insurance company perspective."

Commercial insurers will be forced to move in this direction, says Boothman, "or be seen as anachronistic impediments to new expectations of professionalism and ethical conduct."

Independent doctors and groups can start by having an attorney review their policy of insurance to make sure there's no language that would somehow penalize the group for cultivating a culture of honesty within their practice, advises Boothman.

Next, physicians need to consciously think about how to react when something bad happens, including how information will be gathered and what to document.

"You cannot do this properly in the midst of a crisis, if you haven't planned for it ahead of time," Boothman says. (See related story, below, on how apologies could come up during a lawsuit.)

References

  1. Boothman RC, Imhoff SJ, Campbell DA. Nurturing a culture of patient safety and achieving lower malpractice risk through disclosure: lessons learned and future directions. Front Health Serv Manage 2012; 28(3):13-28.
  2. Kachalia A, Kaufman SR, Boothman R. Liability claims and costs before and after implementation of a medical error disclosure program. Ann Intern Med 2010; 153(4):213-221.
  3. Kraman SS, Cranfill L, Hamm G, et al. John M. Eisenberg Patient Safety Awards. Advocacy: the Lexington Veterans Affairs Medical Center. Jt Comm J Qual Improv 2002; 28(12):646-650.
  4. Fein S, Hilborne L, Kagawa-Singer M, et al. A conceptual model for disclosure of medical errors. In: Henriksen K, Battles JB, Marks ES, et al., editors. Advances in patient safety: from research to implementation: Vol. 2. Concepts and methodology, Safety culture and organizational issues. Rockville, MD: Agency for Healthcare Research and Quality 2005; 483-489. AHRQ Publication No. 05-0021–2.
  5. McDonald TB, Helmchen LA, Smith KM, et al. Responding to patient safety incidents: the "seven pillars." Qual Saf Health Care 2010; 19(6):e11.
  6. Bell SK, Smulowitz PB, Woodward AC, et al. Disclosure, apology, and offer programs: Stakeholders' Views of Barriers to and Strategies for Broad Implementation. Milbank Quarterly 2012; 90:682-705.
  7. Iezzoni LI, Rao SR, DesRoches CM. Survey shows that at least some physicians are not always open or honest with patients. Health Aff 2012; 31(2):383-391.

Sources

  • Richard C. Boothman, JD, Chief Risk Officer, University of Michigan Health System, Ann Arbor. Phone: (734) 764-4188. Email: boothman@med.umich.edu.
  • Eric G. Campbell, PhD, Director of Research, Mongan Institute for Health Policy, Massachusetts General Hospital, Boston. Phone: (617) 726-5213. Email: ecampbell@partners.org.
  • Peter B. Smulowitz, MD, Department of Emergency Medicine, Beth Israel Deaconess Medical Center, Boston. Phone: (617) 667-1708. Fax: (617) 754-2350. Email: psmulowi@bidmc.harvard.edu.
  • Robert M. Wachter, MD, Professor and Associate Chairman, Department of Medicine, University of California, San Francisco. Phone: (415) 476-5632. Fax: (415) 502-5869. E-mail: bobw@medicine.ucsf.edu.

Apology could have unexpected effect in court

Worry over 'stray comments' overblown

I'm Sorry" statutes are valuable, if they increase a physician's willingness to show empathy and maintain their connection with patients after an unintended clinical outcome, says Richard C. Boothman, JD, chief risk officer at University of Michigan Health System in Ann Arbor.

"Beyond that, the apology laws do not have a significant legal impact, in my opinion," he says. Most of the statutes, which 37 states have in place, say that expressions of empathy cannot be used against the physician in court, but a statement such as "I'm sorry for missing that cancer on the X-ray" could be considered a factual statement that can be used against a physician, Boothman explains.

"People hear and remember things very differently," he says. "The difference between an expression of sympathy and a true admission against interest may be more a matter of interpretation and recollection. The statutes do little to clarify those differences."

Boothman says that in more than 30 years representing doctors and hospitals, he cannot recall a single incident in which a case turned entirely on a physician's apology or misinterpreted expression of sympathy. "No case proceeds without medical experts who find a substantive breach of the standard of care that caused an injury," says Boothman. "The whole worry about the impact of a stray comment seems overblown to me."

Even if a physician's apology turns out to be admissible, Boothman says his organization's experience strongly suggests this apology would serve only to make the physician appear more credible.

"That being said, it is extremely important to understand that we advocate intelligent disclosure, not speculation, tantrums or uninformed mea culpas," says Boothman. "We urge our physicians to take care of the patient's medical needs first, before trying to answer complex questions and before they have all the information."

Peter B. Smulowitz, MD, an emergency physician at Beth Israel Deaconess Medical Center in Boston, says that apologies are "only a piece of the puzzle." The Michigan disclosure program is successful because it does the right thing for patients and providers from start to finish, Smulowitz says.

"It takes responsibility when things happen, communicates with patients throughout the process, apologizes when necessary, and provides compensation when appropriate," he says, adding that Massachusetts' new CARe (Communication, Apology, and Resolution) program will take the same approach. "These are the steps that are allowing for a reduction in lawsuits. Patients are made whole, and disputes get resolved early and outside the court system," says Smulowitz. "It's far more than just an apology."

How will the jury view you?

Physician defendants who don't disclose mistakes that harmed patients are likely to be viewed as outliers by juries, according to Robert M. Wachter, MD, professor and associate chairman of the Department of Medicine at University of California — San Francisco. "When everybody was covering errors up and lawyering up, the general expectation was, that is what you do," he says. "Now, many of your peer institutions and colleagues disclose, and there is an expectation of honesty. Their jurors' attitudes would be, 'What are they hiding?'"

It is generally understood that juries look favorably on apologies because it shows that physician defendants are taking responsibility for their actions, says Smulowitz. "This is good for patients and, it turns out, is probably a good thing in court," he says. "But the point to our programs is to resolve disputes without the patient ever having to resort to a lawsuit."