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For Doctors "Sorry" May No Longer Be The Hardest Word

By Tamara Knezevic – CoverMD Staff Writer

When you accidentally hurt someone, saying "I’m sorry" may seem like the very least you can do. But in the medical field this sort of courteous behavior is yet to become standard practice. Malpractice insurance coverage and the fear of medical liability lawsuits have created a system of secrecy in which feelings of compassion and regret are still the exception and not the rule.

It is mandatory for hospitals to tell patients about medical errors. But it isn’t obvious to what degree disclosure policies are followed, and these disclosures may not always be accompanied by apologies.

Many studies have shown that implementing an "I'm sorry" policy has resulted in positive results on many levels. The University of Michigan Health System adopted a policy of investigating medical errors in 2002, and included the apology strategy. This cut their litigation costs in half and new claims declined by 40%. Similarly a study done by the Veterans Health Administration, another early advocate of the “I’m sorry” policy at its hospital in Lexington, Kentucky, had 88 claims and paid an average $15,622 per claim (from 1990 to 1996) compared with a $98,000 average at VA hospitals without "I'm sorry" policies.

"I'm sorry" laws allow a physician to apologize to patients without fear of legal repercussions

Currently at least thirty-six states have so-called “I’m sorry” laws offering some form of legal protection for physicians who apologize to patients after an adverse event. Although this list of states is growing most insurers and lawyers discourage doctors from apologizing for fear it could hurt them in court. There are differences among the individual state laws and it is important that physicians keep abreast of the apology laws they should adhere to.

Michigan recently signed into law the ability for a physician to apologize to a patient or his family for an unforeseen circumstance and not have the apology be admissible in a malpractice suit. Senate Bill 53 was signed into law by Michigan governor Rick Snyder in April 2011.

Pennsylvania joins list of states seeking to add Physician Apology laws

Meanwhile in Pennsylvania the House of Representatives recently voted overwhelmingly to approve a medical liability reform bill addressing physician apologies (House Bill 495). Ralph Schmeltz, MD president of the Pennsylvania Medical Society said “the Apology Bill will allow us to do what is in our fabric .... to be empathetic with and comfort our patients in their time of need during a time of an adverse event, even if it is a result of a medication or a treatment we prescribed.”

Dr. Schmeltz noted that it remains to be seen whether the apology bill will lead to a decrease in malpractice suits but that even if it does not, it is still a worthwhile accomplishment. He hopes that if the number of lawsuits drops this in turn will result in decreased malpractice insurance premiums for physicians. The Pennsylvania Physician Apology Bill will apply to physicians and all health care workers approved by the Commonwealth to provide health care or professional medical services.

Dr. Schmeltz continued “Since the Pennsylvania Supreme Court changed its rules (the Certificate of Merit and the Venue rules) there has been a decrease in the number of cases filed and a decrease in payouts. Unfortunately, we have not seen a corresponding reduction in premiums. More remains to be done to assure a fair system, in which patients who are injured due to true negligence receive just and appropriate compensation while physicians are not penalized for providing evidence based care that happens to result in an adverse event.”

It pays to be "nice"

It has been noted that physicians who are perceived as “nice” by their patients get sued far more rarely. This has to do with how people are treated and when a physician openly and frankly admits responsibility for an adverse event the admission can disarm the patient and help lessen their anger or sense of aggrievement. It is often the case that, as the saying goes 'honesty is the best policy'. It also helps when a patient is additionally assured that the mistake will not happen again and that the doctor and medical institution will take care of what they’ve done wrong and rectify the situation to their best ability.

While treating patients "nicely" seems like commonsense and the right thing to do in all cases it can also help with the physician's medical malpractice insurance. Given that doctors who are "nice" to patients are sued much less often this fact can help a doctor obtain additional discounts on his malpractice policy, such as claims free discounts.

The author of this article had an experience with a hospital and doctor who expressed an apology after an endoscopy went wrong. The tissue/specimen mysteriously disappeared since the courier who carried it from the hospital to the lab somehow misplaced it. Both the doctor and a hospital representative apologized and offered to do a second procedure free of charge. A month later the hospital representative called and said the specimen had been found. But the doctor seemed to convey that he wasn't entirely sure that it was my specimen although he frankly told me that he didn’t want to put me through another endoscopy so soon. The situation was not life threatening although extremely inconvenient, annoying and quite a hassle. And throughout it I had complete faith in my doctor although not in the hospital itself. I would never even have contemplated suing him.

An honest and transparent approach is the key

Many hospitals and insurers have been against apology-and-disclosure policies, worried that transparency could give more ammunition for frivolous lawsuits. For many doctors the fear of being sued, driven in large part by aggressive personal injury lawyers, has resulted in a defensive medicine mentality in which saying nothing has become accepted as a first line of defense. Couple this with the fact that admitting you've made a mistake isn't easy at the best of times and it's not hard to see that many doctors still find the apology process incredibly difficult. This is due in part to a lack of education on how to best approach apologizing to a patient - even when physician apology laws are in effect.

A shift in this culture of silence and the courage of physicians will enable them to communicate openly and go public, instead of sweeping information under a rug. And this ultimately matters for a number of reasons. Physicians claim that an Apology Bill would preserve their relationship with patients since it would allow them to talk honestly about an unfortunate event and say they are sorry. Patients and their families crave compassion and answers most of all at the actual time of a medical error so a more honest and transparent approach can serve as closure for all parties involved.

Communication is incredibly important for another reason. Talking about an adverse event will help other doctors avoid a similar situation. Going public with mistakes becomes a learning opportunity for fellow peers as a recent article in amednews.com highlighted. Cases that once would have disappeared into sealed courthouse files are now openly discussed to see what insight they may offer. Errors are no longer badges of shame. Instead they are paths to quality-improvement and more superior knowledge. Last but not least, physicians are taught how to handle the aftermath of an unfortunate event and they are given emotional support.

Doug Wojcieszak, founder and spokesperson of The SorryWorks! Coalition, has been a fervent supporter of the disclosure and apology cause as well as upfront compensation (when necessary) after adverse medical events. The SorryWorks! Coalition believes in building strong relationships with patients and their families before an adverse event happens and saving those relationships with disclosure and apology after an adverse event. The coalition provides teaching and training tools to help healthcare and insurance organizations implement and develop successful disclosure programs. This in turn will hopefully change the culture of medicine, medical risk management, and the insurance and legal support structure associated with them.


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