Apology laws: Talking to patients about adverse events

Let’s say your 53-year-old patient is in the hospital having a basic test-a computerized tomography-guided biopsy of his liver. It should take about an hour, so the technician suggests to the patient’s wife that she go shop at the mall across the street and expect a call when her husband is  ready to go home. Instead, the wife answers her cellphone to hear a nurse frantically telling her to return to the hospital right away. When she does, she learns that her husband has died.

You’re the doctor who is in the room with this shocked and grieving widow. What do you say to her?

When Doug Wojcieszak, founder of Sorry Works! posed this scenario recently to attendees at a neurologists’ conference, it took a full two minutes for anyone to put a hand into the air. “That’s the problem,” he says. “You don’t have two minutes.”

For many physicians, their reflex is to avoid the situation and say nothing or as little possible in the aftermath of patient harm. Part of this response comes from a longstanding mindset that physicians should “deny and defend” against the possibility of being charged with any culpability in cases of possible medical malpractice. Until the last decade or so, most lawyers and malpractice insurers promoted this advice.

Increasingly, however, the healthcare industry is recognizing the benefits of prompt and transparent physician communication with patients and families about bad outcomes. The legal landscape is shifting, too, as at least 36 states now have “apology laws” that prohibit certain statements, expressions, or other evidence related to disclosure from being admissible in a lawsuit. Most state laws keep expressions of empathy and sympathy from being admissible in court, while a few protect admissions of fault.

Not all experts believe in the efficacy of apology inadmissibility statutes, however. “They’re really not worth anything,” says Victor Cotton, MD, JD, president of Law & Medicine, a malpractice consultancy in Hershey, Pennsylvania. “Most of them would prevent a lawyer from telling a jury that a physician was sympathetic, kind, and compassionate. But plaintiff lawyers don’t use sympathy against doctors,” he says. As for laws that appear to protect physicians against admissions of fault, Cotton says lawyers can “blow a hole in every one of them.”

But according to Wojcieszak, the strength of apology laws is moot-because they aren’t even necessary for physicians to participate in disclosure. If doctors simply empathize with patients post-event, without admitting fault until an investigation is complete, they don’t have to worry about getting into trouble, he says.

Next: Expressing empathy but not guilt to patients

Express empathy but not guilt

Nonetheless, the task of “expressing empathy without admitting fault” is not one for  which most clinicians are trained. For every success story about how a physicians’ words can promote healing, lawyers can describe cases in which doctors made the situation far worse.

“The initial response to patients or family members should be, ‘I’m sorry. I don’t know exactly what happened and I don’t know exactly how or why, but I will find out promptly and let you know as soon as I get it figured out,’” says Don Karotkin, a malpractice attorney with Karotkin & Associates in Houston, Texas.

But what happens frequently is that physicians say things to patients that extend beyond the facts known at the time. When more details become clear via an investigation, the physician may have to retract or contradict statements he or she made too soon. Even if the physician never intended to be dishonest, the inconsistency can look suspicious to a jury.

Wojcieszak agrees that the stress, shock, and embarrassment of a potential mistake can lead physicians to react inappropriately. “Either they want to run away or they want to start stumbling down the wrong path,” he says. “I tell them that when something bad happens, you just need to be a grief counselor. You need to sit with them and hold their hand. The next patient can wait.”

Timing is everything

Considering that the average malpractice case drags on for five to seven years, it’s worthwhile to invest the time in comforting a patient or family member immediately after a disaster, Wojcieszak says.

This and other lessons can be gleaned from health systems that have implemented processes aimed at changing the malpractice landscape. Massachusetts, for example, in 2012 adopted a policy of “disclosure, apology and offer (DA&O) when patients suffer avoidable medical harms.

Under the DA&O model, when unanticipated adverse outcomes occur, patients and their families are provided full disclosure of what happened, what it means for the patient medically, and what will be done to prevent the error from recurring, says Evan Benjamin, MD, FACP, senior vice president and chief quality officer for Baystate Health and associate professor of medicine at Tufts University School of Medicine in Boston, Massachusetts. Physicians and healthcare organizations then are given the opportunity to apologize without fear of their words being later used against them in court.

In addition, organizations work with their liability insurers to give patients a fair and timely offer of financial compensation. The purpose of the policy is to give patients the information and financial recourse they need upfront in hopes that fewer patients will resort to lawsuits.

Thus far, Massachusetts is still analyzing the outcomes of these efforts, but Benjamin says there will be no going back to the old ways of silence and secrecy. In the meantime, he continues to work on the front lines of studying his organization’s “CAR” process: communication, apology, and resolution.

The CAR process usually takes about six months, he says. Although information is shared far more quickly than in a typical litigious scenario, conversations are staggered in a way thought to be the most beneficial to the patient.

For example, in the early phases of the discussion, most patients aren’t yet ready to hear what an organization is doing to make sure the same mistake doesn’t reoccur, Benjamin says. It is important to follow up with this information later, “but early on, patients just want transparency,” he says. “They say, ‘Tell me what happened to me and what’s being done to care for me. I want to make sure I’ve got a clear picture of the game plan and nobody is lying.’”

Next: Seek support about medical mistakes

Seek support

As part of the Massachusetts program, patient safety coordinators coach physicians throughout the process, from the initial expression of sympathy to sharing the results of an investigation and eventual discussion with insurers surrounding compensation.

This support is a crucial part of DA&O’s success, Benjamin says. “Physicians are not alone in any event. We need to appreciate that most medical mistakes occur as a result of a poor system, not just individual provider error,” he adds.

But regardless of where they practice, physicians do have resources available to help them through a medical disaster.

After a physician’s first conversation with a patient or family member-one that should express empathy and a promise to follow up as soon as more facts are known-the next step should be a phone call to the doctor’s professional liability carrier, Karotkin says. “That’s why you bought insurance-in case you had a disaster-so now you have some help that you’ve already paid for.”

Physicians can be hesitant to take this advice, however, because they’re afraid that telling the insurer they may have made a mistake could compromise their coverage, he says. To the contrary, Karotkin says physicians risk endangering their coverage if they make statements to patients that could be construed as confessing liability.

To prevent physicians from saying the wrong thing, most insurers are happy to counsel their clients, either at the time an event occurs or through an  educational session. “Many insurers will even send lawyers like me or another expert to the practice to give a presentation on what to say, at the insurer’s expense, and even give the physicians a discount on their premium for attending,” Karotkin says.

The Doctors Company, the nation’s largest medical malpractice insurer, says the following within its policy about disclosure: “Patients have a right to be informed of the medical facts pertaining to their health status and medical treatment. Physicians have a responsibility to provide accurate, timely information to patients and, when appropriate, to the patient’s family members about events that affect the patient’s health status and future treatment needs-including the disclosure of adverse events and outcomes. … Physicians are encouraged to seek guidance from individuals with patient safety and risk management expertise in both the communication and reporting of adverse events.”

Getting to resolution

Following a death or serious event, physicians must make good on their promise to stay in contact with the patient or family throughout the investigation and share with them the results of the review, Wojcieszak says.

“If the review shows you made a mistake, then you’re going to come to the family and say, ‘I made a mistake and I’m very sorry.’” Then the discussion turns to how to offer recourse, economically as well as emotionally, he says.

Conversely, if the review shows the physician did not make a mistake, Wojcieszak still recommends expressing empathy, explaining what the expert reviewers found, and offering the patient and family a copy.

“If we did a credible review that shows there was no mistake, and we still get sued and have to go to court to argue causation, fine,” he says. “Let’s go to court and argue because we didn’t apologize. We were simply empathetic and we were credible, and we’ll go to court and we’ll talk about that story.”