How to thread the needle when talking to patients about medical mistakes.
It used to be that when a patient experienced a bad outcome from a treatment or procedure, doctors were advised not to apologize, or even express sympathy to the patient or their family, lest something they said be used against them in the event of a malpractice suit.
But the conventional wisdom regarding apologies has started to change. Now, experts say, the answer to the question “Should you apologize?” is “it depends.” In part, that has been driven by the growing number of states passing so-called “I’m sorry” laws, which say that doctors’ apologies to patients can’t be used as an admission of guilt, says Fred Cummings, JD, a malpractice attorney with Dickinson Wright in Phoenix, Ariz.
By late 2018, 39 states and the District of Columbia had enacted laws regarding medical professionals making apologies or sympathetic gestures, according to the National Council of State Legislatures.
But even without such laws, Cummings says, there are ways for doctors to apologize and express empathy without saying they are to blame. “Sometimes doctors have to make judgment calls, and even if it doesn’t turn out the right way, it doesn’t mean making the judgment was wrong,” he adds. “Talking about that with the patient and regretting the situation doesn’t necessarily get the doctor in trouble with the patient.”
Richard Boothman, JD, a healthcare risk management consultant in Ann Arbor, Mich., and a former trial attorney and chief risk officer for the University of Michigan Health System, favors apologies under some circumstances.
“The standard of care is not to be perfect or clairvoyant, it’s to be reasonable,” he notes. “But there are times when a physician just drops the ball and makes a mistake. And at that point an apology can be healing for both the physician and patient.”
But if an apology is offered, he cautions, it has to be sincere and viewed in the larger context of the trusting doctor-patient relationship. “You can’t look at it as some risk management strategy that you just roll out and hope the patient or their family satisfied, then walk away,” he says.
The drawback of apologizing is that “you can’t unring that bell once you do it, so you have to be darn sure you know what you’re talking about,” Boothman says. While at the University of Michigan Health Systems he told doctors, “It’s always fine to so say to a patient, ‘I’m sorry this happened, it’s not what any of us planned, and we’ll get to the bottom of it. But let’s take care of your immediate medical needs and we’ll have another conversation about this later.’ That’s what we wanted.”