Legislating apology in the context of medical mistakes
Categories: Medical InformationLearning to say “I’m sorry” is one of the first lessons of childhood. An apology not only opens up the opportunity to mend relational breakdowns, it has the potential to release amazing healing energies. In the context of medical errors, however, apologies have been few and far between. The reason lies in the fundamental change that happens when an unanticipated medical outcome occurs (ie, the parties leave the medical environment and enter the legal environment).
Attorneys, insurance companies, and hospital administrators advise and sometimes even require that health care providers (eg, physicians, nurses, other clinicians) avoid apologizing for medical mishaps, and there is good legal reason for this decision. An apology is considered an “admission against interest” and, as such, is admissible in a court proceeding as evidence of acknowledgment of fault. The adversarial system in which patients and providers find themselves sets up a wrenching scenario. Practitioners are advised to keep their mouths shut for fear of providing damning evidence, and patients’ righteous anger builds against a wall of denial and silence. The results can be explosive. In response to growing evidence of the salutary effects of full disclosure of medical errors, however, the concept of acknowledging responsibility and apologizing for mistakes is gaining momentum.
THE EFFECT AND POWER OF APOLOGY
Silence and denial after a medical error can lead to bad results, including
* anger and hurt about the unanticipated outcome;
* a sense of betrayal of trust, relational disconnect, or destruction; and
* sentiments ranging from frustration to fury regarding the perceived thwarting of the patient’s natural desire for information after an event.
Conversely, the interjection of an apology into this situation yields several ameliorative results. An apology subtracts the insult from the injury. Furthermore, an apology
* restores the aggrieved person’s respect and dignity;
* decreases anger;
* helps prevent antagonistic behavior;
* promotes natural, open, and direct dialogue;
* furthers reconciliation; and
* assures the injured party that both victim and offender share the same moral values in a world with common ethical standards.
Information, candor, and expression of accountability are what many injured patients and their family members seek. These values are part of what an apology provides.
Apologies have great power in the legal arena as well. “Nothing is more effective in reducing liability than an authentically offered apology.” Studies have shown that apologies encourage settlement of grievances and avoid litigation. A British study found that 37% of patients and family members bringing suit may not have done so had there been a full explanation and an apology, factors more significant than monetary compensation. A US survey found that in situations when moderate medical errors occurred, only 17% of patients would sue if the physician informed the patient of the error. If the physician did not inform them, however, 29% of patients would sue if they later learned of the error. One commentator asserts that in the medical malpractice context, 30% of all plaintiffs claim they would not have sued if only there had been an apology.
In a study involving the Veterans Administration Hospital in Lexington, Ky, administrators adopted a disclosure policy that required
* identifying an instance of accident, possible negligence, or malpractice;
* notifying the patient that there was a “problem with care” they received;
* holding a face-to-face meeting to disclose all aspects of the event; and
* offering continuing assistance to the patient in obtaining compensation.
At the meeting with the patient, the hospital chief of staff is directed to express regret, detail corrective action taken to prevent similar occurrences, and offer restitution. The program has reaped significant rewards. Lexington’s average malpractice award dropped from $98,150 to $15,622, less than 10% of malpractice claims were filed in court, and most of these were dismissed before trial.
The University of Michigan Health System adopted a similar program and was able to reduce its legal budget from $3 million to $1 million in 18 months. Disclosure, candor, and apology combine to mitigate the costs of medical mistakes.
Two TYPES OF APOLOGY
An apology can have several definitions and take several forms. Generally, an apology refers to remarks made after an injury occurs, whether it is intentional or unintentional. In this usage, an apology is defined as
an admission of error or
discourtesy accompanied
by an expression of regret
… an expression of regret
for a mistake or wrong
with implied admission of
guilt or fault and with or
without reference to mitigating
or extenuating
circumstances….
Apologies fall into two discrete categories: expressions of sympathy or benevolence (eg, I’m sorry you are hurt) and expressions of accountability and remorse (eg, I’m sorry I hurt you). The benevolent or sympathetic apology expresses regret regarding the damage, injury, or pain but stops short of acknowledging responsibility for the event. It is empathetic and compassionate but ambiguous. The accountability apology (ie, authentic apology) is a personal acknowledgement of responsibility for a specific mistake or grievance, along with an expression of remorse appropriately tendered to the aggrieved party. The difference between the two types of apologies has engendered debate among legal scholars, medical professionals, and commentators.