To err is human. Every physician at any experience level has made a medical error. Sometimes mistakes can cause harm to patients. How should a physician respond? Is there a role for an apology, or will that lead to a lawsuit?
Most medical errors go undetected, and most of those that are caught don’t result in harm to a patient. But when harm is caused, the question becomes: How should a physician respond? Is there a role for an apology to the patient?
The conventional answer is: No, don’t apologize.
The theory underlying that answer is that in a subsequent civil suit by the patient, the apology could be admitted into evidence against the physician, and it wouldn’t be excluded on the grounds of hearsay, because of the hearsay exception for admissions and statements against one’s own interest. For a number of reasons, though, this conventional answer may not always—or even usually—be the correct one.
Physicians must disclose mistakes
The American Medical Association has long taken the position that a physician has an ethical duty to disclose a harmful error to a patient.
In practice, it may be difficult to disclose, let alone describe, an error without apologizing. Failure to accompany the disclosure with an apology might be interpreted by the patient as a lack of remorse. If the error occurs in a hospital, The Joint Commission requires that the hospital discloses it to the patient. This requirement, like the AMA’s ethics rule, may put the physician in the position of either apologizing or appearing callous.
In recent years states have begun to add the force of law to these ethical and regulatory disclosure requirements. For example, a number of states now require hospitals to disclose all serious errors. If a physician was involved, the disclosure creates pressure to apologize.
Two kinds of ‘Apology Laws’
Several states have also enacted so-called “Apology Laws,” which should mitigate the conflict a physician faces when trying to meet the patient’s desire for an apology while avoiding self-incrimination. These Apology Laws change the traditional evidentiary rule by providing that apologies are not admissible in civil actions for medical errors.
Apology Laws fall into two categories. One category protects apologies and acknowledgments of fault —admissions of responsibility—that go with the apologies. Colorado has a statute in this category. The second category protects the apology itself but not any acknowledgment of fault. Indiana has this second category. The “communication of sympathy” is inadmissible, but a “statement of fault” (if any is made) remains admissible.
How ‘Apology Laws’ work
Assume, for example, that a Colorado physician and an Indiana physician each said to a patient, “I made a mistake. I’m sorry.”
In Colorado, neither sentence could be used as evidence against the physician. In Indiana, the first sentence could be used as evidence, but the second sentence could not.
In practical terms, this means that the Indiana physician making an apology must take great care in formulating and expressing the apology. The physician would be well advised to consult an attorney to formulate the precise wording of any apology.
The legal benefits of an apology
What happens when a physician apologizes? Of course, innumerable variables are involved in such an analysis.
But there is good evidence indicating that instead of increasing lawsuits and awards to patients, apologies actually reduce both the incidence of lawsuits and the amount of the awards. Evidence from multi-year studies at both the Veterans Administration Hospital of Lexington, Kentucky and the University of Michigan Health support this conclusion.
What patients want after a medical error
According to Lucian L. Leape, MD, of the Harvard School of Public Health, what the victim of a medical error most desires is that the physician:
- acknowledge the error and explain it;
- take responsibility and apologize; and
- find the underlying cause and prevent its recurrence.
A study by Carol Liebmann and Chris Hyman published in the July 2004 issue of Health Affairs reached a similar conclusion.
The study also concluded that even when patients file suit, their primary motivations are:
- a perception that the physician was not honest about the incident;
- a perception that no one explained what happened; and
- advice from someone—often another health professional—to sue.
The conclusions of these studies are consistent with one another and with the idea that an apology may very well be an excellent way to avoid a lawsuit. If a physician denies a patient what the patient most wants—acknowledgement and explanation of the error and assurance that it won’t recur—the patient will be more likely to feel compelled to sue.
Practical implications of an apology
What are the practical implications of these considerations for a physician who has committed an error that caused harm?
We know that the physician is obligated to disclose the error by professional ethical considerations, regulatory requirements, and by statutes in many states. We know that the disclosure can be awkward and even offensive if not coupled with an apology. We know that many states have Apology Laws that bar the apology from admission into evidence. And we know that research says withholding an apology may well deny the patient the very thing that the patient most wants. And that may be what triggers a lawsuit.
Conventional wisdom may be incorrect
In light of all this, then, in many cases conventional wisdom—that it’s dangerous to issue an apology—may not only be incorrect, it may actually be counterproductive and lead to a lawsuit.
Of course, whenever possible, a physician should consult an attorney before deciding how to proceed. But in doing so, both the physician and the attorney should critically reflect on whether the conventional answer is helpful or harmful.
So don’t immediately discount the power of a sincere apology. After all, if to err is human, to apologize may be benign.
The answer to this question was provided by Norman G. Tabler, Jr., Counsel in the Indianapolis, Indiana, office of Faegre Baker Daniels LLP and a member of the firm’s Health & Life Sciences practice group. Send your practice management questions to email@example.com