Think twice before saying 'I'm sorry' to a patient

Key Points

A study published in the October 6, 2008, Archives of Pediatric and Adolescent Medicine has confirmed the predictable: Doctors will more frequently admit to medical errors that are obvious, or likely to be detected, than they will for less-apparent errors.

Physicians who admit errors may face the opprobrium of their peers, the anger and disappointment of their patients (and their patients' families), legal entanglement, and economic loss. Unlike in church, confession doesn't necessarily lead to absolution in the world of medicine.

While saying I'm sorry may well be morally correct and soothing to the psyche, our society, unfortunately, provides little reward for contrition. Indeed, the high road often comes with many sharp turns and few guardrails.

As a physician, not only do you have to worry about the effect that saying I'm sorry may have on your malpractice coverage, but a lawsuit, or any payment by an insurance carrier, is likely to increase your premium costs, often by tens of thousands of dollars each year.

A law that precludes an apology from admission in a malpractice case can help resolve the problem. Regulations that prohibit insurance carriers from using an apology to avoid coverage or increase premiums would also encourage honesty and openness.

Thirty-five states have enacted apology laws that range from exempting expressions of sympathy and empathy to exempting admissions of fault. While some of these laws may provide sufficient protection to a physician who wants to apologize, others do not.

Some recent initiatives suggest that an apology can help avoid litigation and result in a quick and fair resolution of a mistake. However, most of these studies have been undertaken in state-run facilities, which in many cases employ the physicians.

In private facilities, the interests of the institution and physician may not mesh. Efforts by the hospital to have the physician apologize may be more reflective of its desire to shift liability than about a desire to "do the right thing."

What should you do if you are unfortunate enough to commit human error? First, contact your personal health-care attorney and, if your lawyer agrees, your carrier. If both agree, and in consultation with both, devise a strategy to best communicate your regret in a way that is likely to make matters better, not worse, giving due consideration to the laws in your state.

While apologizing may be good for the soul, it may be dangerous to your career. Hopefully, legislation will one day bring your soul and your professional duty into better alignment.

The author is a health law attorney with Kern Augustine Conroy & Schoppmann in Bridgewater, New Jersey; Lake Success, New York; and Philadelphia. He can be reached at kern@drlaw.com
. Malpractice Consult deals with questions on common professional liability issues. Unfortunately, we cannot offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to memalp@advanstar.com
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