When should physicians say they are sorry? When should they stay quiet? There’s a time and place for both.
The medical community's traditional response to dealing with medical mistakes-“deny and defend”-has come under fire in recent years. Critics say the approach is unfair to patients and their families, and that a more open and flexible process can defuse potential malpractice suits, improve the quality of healthcare and actually strengthen the doctor-patient relationship.
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Such was the case for Seattle-based internist Thomas Gallagher, MD, whose patient was too obese for a standard MRI and had to travel an hour to a facility that could accommodate him. However, technicians at the facility did not perform the proper level of imaging, resulting in Gallagher dealing with an upset patient and family who would have to make the trip again for a second scan.
The patient wasn’t harmed, and hadn’t threatened to sue. But Gallagher didn’t hesitate to explain the error and apologize for a mistake that wasn’t even his.
“Even a minor problem can be quite harmful to the well-being of the patient and the bond that exists between the patient and the doctor,” says Gallagher, who is executive director of the Collaborative for Accountability and Improvement, an organization that teaches communication and resolution programs for healthcare organizations, insurers and clinicians.
Apologizing for mistakes, even relatively minor ones, is becoming more common in primary care. Doing it effectively-without getting into legal trouble-isn’t always easy.
As a plaintiff’s attorney for more than 20 years, Richard Boothman, JD, noticed that many clients simply wanted an explanation of what had gone wrong with their care and were suing out of frustration with the wall of silence around the “deny and defend” policy.
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Now chief risk officer of the University of Michigan Health System (UMHS), which has three hospitals and 40 outpatient locations, Boothman has eliminated “deny and defend” and replaced it with a policy that is more transparent, conciliatory and open to admitting fault and providing compensation.
Experts say that since any practice can be sued, even small ones, all of them need an apology policy.
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While large health systems like UMHS have teams dedicated to the process, smaller practices must work with the resources on hand and recruit outside support as needed. Doug Wojcieszak, founder of Sorry Works!, a consulting firm that teaches apology and disclosure practices, advises small practices to:
A solo practitioner in Austin, Texas, Chris Larson, DO, seeks to incorporate open communication and apologies into his daily dealings with patients. He says the patients in his concierge practice are generally understanding of errors. “I don’t think there is a downside to giving apologies, in general,” he says. “Gone are the days of the ‘doctor god.’ Our ability to hide behind that paternalistic relationship is over.”
Larson says he educates patients about the risks and benefits of various treatment options when deciding what course of treatment to follow, which serves to let them know that not every treatment works.
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Practice members should reach a consensus on a single approach and talk through scenarios, including who will take the lead in dealing with patients and families, and arranging for outside support and services, such as attorneys and malpractice insurers.
If the practice is part of a healthcare system, it should consult with the appropriate management officials. Wojcieszak says he’s often heard from doctors that they’ve been instructed by insurers not to talk, but when he checks, he often finds the insurers have changed their policy to allow discussions.
Of course, not all insurers will give the same answer. “It’s safe to say our membership is somewhat divided on the issue,” says Mike Stinson, vice president of government relations and public policy for PIAA, a trade association for medical insurers and risk retention groups.
Payers’ views vary from state to state and from company to company. Those policies can be affected by state apology laws, litigation environment and even the payer’s relationship with the state bar.
Regardless of the approach, the practice and insurer need to agree. “The worst-case scenario for us is a healthcare system developing an actual policy without thinking about how the insurers would be involved,” Stinson says.
Apologizing for a medical error, particularly when someone has been harmed, often is difficult. It’s important to say something, but it can be dangerous to say the wrong thing. That’s why it’s important to know the difference between empathizing and apologizing.
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Wojcieszak defines empathy as an expression of remorse and understanding without taking responsibility for what happened or even admitting a mistake was made. Apologizing goes a critical step further by accepting responsibility for the error. “Be quick to empathize; be very slow to apologize,” Wojcieszak says.
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There are good reasons not to lead with an apology. In many cases of medical harm, it’s not clear initially what went wrong or why, whether it was an error or an unforeseeable complication, who was responsible or if it could have been prevented.
An unhappy patient often is looking for someone to blame and is unlikely to welcome retractions or clarifications once someone has accepted blame. “You cannot un-ring the bell,” Boothman says. Physicians can express their unhappiness with the outcome and promise to get to the truth.
Communication with the patient or family should not be overly scripted, says Linda Terrell, MD, an internist who serves on UMHS’ review committee. “Humility in the apology is important,” she says, noting that she has intervened in cases where physicians in her Ann Arbor clinic were not sufficiently humble in dealing with the patient.
An insincere apology can be worse than none at all, she says. Before entering a room with the patient or family, the caregiver should be in a humble frame of mind and open to others’ concerns, not defiant, defensive or argumentative. Insurers and healthcare systems offer a range of communication resources that instruct caregivers in how to communicate effectively.
It’s also important to understand that sometimes patients sue not to punish physicians or reap a monetary award, but to make sure the mistake doesn’t happen to someone else. Daniel Kaul, MD, an internist at UMHS, remembers meeting with the family of a patient who died because of a medical error. “At the end of the meeting, the father of the person who died looked at us and said, ‘Did you learn anything from this?’” Kaul says.
Practices must also know whether their state has an apology law and what it protects. These laws were passed to make it easier for physicians to admit errors to patients by not allowing those statements to be used against them in a civil suit.
Thirty-five states and the District of Columbia have apology laws, though they differ in how much they protect. Some exempt apologies and acknowledgments of fault from being used in litigation, while others protect only apologies.
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What level of medical error merits an apology? It depends on the patient’s or family’s response to the error. An aggrieved patient who calls the office to vent, registers an official complaint or hires an attorney cannot be ignored, regardless of the validity or severity of the error. “When they do complain, you need to take it seriously,” Wojcieszak says, adding that ignoring a complaint can result in litigation and the loss of the patient.
In the case of the obese patient and the MRI, for example, some patients would have shrugged off the mistake. This one didn’t, however, thereby endangering the relationship between him and the doctor, so Gallagher apologized.
It’s important that practices be consistent in their approach. Apologizing only for the most severe errors or having different physicians apply different standards should be avoided. “That cherry picking is a recipe for disaster,” Gallagher says.
A good disclosure policy should be more about improving healthcare than avoiding litigation, says Boothman, who is a director of the National Patient Safety Foundation, a nonprofit that works to improve patient safety. The primary goal should be to acknowledge errors, investigate their cause and determine the best way to ensure they aren’t repeated-all the while addressing the needs of patients and staff.
The “deny and defend” policy makes progress impossible, he says: “If I can’t admit I have a problem and communicate with the patient, then I can’t improve.”
It also prevents physicians from taking responsibility for errors, so they don’t feel accountable and the patient-physician bond is weakened. “That’s the single biggest cost, I think,” Boothman says. “We actually drive people to lawyers and then use the fact that they have a lawyer to justify treating them as an enemy.”