Why empathy may be the best risk management strategy

Thirty-six states have “apology laws” that prohibit certain statements or expressions of sympathy by a physician from being admissible in a lawsuit. Experts in the field say that while the laws may help some physicians feel more comfortable about expressing empathy, they aren’t really necessary to avoid lawsuits. Instead, good patient-physician relationships and open disclosure are the keys to responding successfully to a bad outcome.

Apology laws are designed to encourage compassion in the wake of a bad medical outcome, instead of the old paradigm of physicians and hospital being evasive and running for cover.

IN DEPTH: Apology laws: talking to patients about adverse events

Doug Wojcieszak, owner of the advocacy group Sorry Works, receives many requests to teach doctors how to communicate after a problem. He became interested in the topic when his older brother died at age 39 from a medical error. He says that while losing his brother was awful, the experience was compounded by a total lack of communication and accountability afterward.

“If someone would have just sat down and told us what happened, and said they were sorry, and told us what they were doing to make sure it didn’t happen again, there would have been no need for us to sue,” he says.

The family did sue and won money, but has still never received an apology. “This was a defining moment in my life,” he says.

Coaching doctors

Wojcieszak urges physicians and hospitals to take a few simple steps when a problem occurs.

“Simply say you are sorry it happened and promise to undertake a review. That’s all you need to say,” he says.

Resist any urge to assign blame, to yourself or others, until the review is complete. Instead, ask what you can do to help the family, such as getting them food, a hotel room, or transportation.

Stay connected to the family, he adds. Call and follow up with them regularly even if you don’t have anything new to report. Once the review is complete, present it in a transparent conversation. If an error occurred, offer them fair recompense. Families may ask you to cover the costs of rehabilitation or lost pay, but often will not ask for large monetary awards. He has seen situations in which the hospital has had to tell the family the case is worth a certain amount of money and encourage them to take it.

Doing this helps a hospital maintain its reputation for treating patients fairly, he says. It also reduces costs from lawsuits and helps relieve caregivers of the stress and guilt they may be feeling.

Apology laws are not legally necessary if you do all of this, Wojcieszak says. If you are sued, you can tell a jury that you acknowledged the mistake and offered compensation that was rejected, and now it’s just a matter of asking the jury to decide what is fair. The jurors may see the plaintiff as greedy and unreasonable. There have been cases in which the jury has given the plaintiff nothing, even though the physician admitted fault, he says.

“The lack of accountability is what often adds zeros to settlements,” he says.

NEXT PAGE: The value of disclosure

The value of disclosure

Timothy McDonald, MD, JD, is a physician-attorney who had worked on patient safety efforts at the University of Illinois Medical Center for the past decade and researched the topic of communication and resolution. Currently, McDonald practices at Cornell Weill Medical School, doing research and helping build a hospital disclosure program in Doha, Qatar.

He points out that not every instance of patient harm is the result of an error, but that patients and families want honest communication anyway. Whenever “unexpected harm” occurs, physicians have an obligation to be open and compassionate. Even if a patient was warned that death was a possibility, the family will still be shocked.

“If it turns out during an investigation that a mistake was made and that your care was inappropriate, we need to tell them that too,” he says. “That’s when the resolution part of this comes in.”

Don’t make the family fight for information or a settlement, McDonald advises. Fully disclose what happened and make them an early, appropriate offer.

“It takes a fair amount of courage for an organization to step up and change the paradigm to be open and honest throughout the therapeutic relationship,” McDonald says. “That means that when our care is inappropriate, we are not going to defer to the legal system. We are going to manage that.”

This approach does not have to be affected by apology laws, which can vary widely, he says. In some states, adding “I’m sorry to tell you this” after discussing a problem can be used as an admission of guilt when the physician was only trying to show empathy, he says. The best framed apology laws are those that encourage empathy without making a physician worry it will be twisted into an admission of fault, McDonald says.

“A purist would say you don’t need apology laws to do that. You just document your conversations and you have every right to tell a jury that you were just expressing regret, which is important,” he says. “Even though it may lead to some legal angst, the truth should set you free. But (these laws) can give front-line physicians a sense of confidence that expressing empathy will not come back to hurt them.”

He points out, however, that this dynamic can go too far in the other direction and that expressions of regret can be labeled as inadmissible. A defense attorney’s inability to present this information can make the physician seem insensitive and make the jury more likely to award damages.

Illinois’ apology law was thrown out because one part of it was deemed unconstitutional, but that didn’t change IU’s program, he adds.

NEXT PAGE: Building policies that encourage full disclosure

Implementing full disclosure

In 2001, the University of Michigan Health System implemented a disclosure program that functions independently from the state’s apology laws.

In fact, Richard C. Boothman, JD, executive director for clinical safety and chief risk officer at the University of Michigan Health System, calls Michigan’s apology law-which was passed after multiple failed attempts-pretty typical of laws nationwide.

“From the perspective of a trial lawyer, they are literally worthless,” he says. They are often watered down in an attempt to please everyone, he says. Michigan’s law says that an expression of sympathy cannot be used as an admission against a physician’s interest, although admissions against interest can be admitted.

Often this prompts people to have different recollections of conversations, he notes, as both sides tend to filter what they hear.

“There is a real possibility that a doctor’s expression of empathy or sympathy can be interpreted the wrong way by someone who is perhaps predisposed to hear something different, or who wanted to hear something different,” he says.

If a doctor is worried that what he says may come back to hurt him later in court, he may be defensive and guarded.

“This defeats the whole purpose, which is too bad because these cases are complex and they always require experts on both sides to educate the jury on complicated medical concepts,” Boothman says. “For a case to turn on what someone said or didn’t say in the heat of the moment seems a little stupid.”

The University of Michigan created its program to address these challenges, even before the law was enacted.

“The quality of the physician-patient relationship needs to be so strong that we should be able to have honest communication that is seen as a continuum, not just a single conversation, and that has not backfired on us,” he says.

But even with that approach, the university has learned the value of almost always following up such conversations with a written summary.

“This serves multiple purposes. It helps define the four corners of the message so there is little doubt about what we are saying,” Boothman explains. “Secondly, it allows patients who are not medically sophisticated to read and reread that message, because often the second or third time, they get more out of it than the first time,” he says.

“Lastly, we know that a certain number of patients will go talk to an attorney, and when we write these letters, we understand that a lawyer, or other family members or friends, may be looking at it and we want to add clarity to the vagaries of human communication.”

Boothman, who practiced law in Michigan and Ohio for 22 years, tells doctors not to share conclusions about the cause of a bad outcome until they have all the facts. That’s because you can’t “unring a bell” once the family hears you take the blame, he says. It’s also the reason that the University of Michigan doesn’t do specific disclosure training for the medical staff.

“I don’t want a doctor in the heat of moment to think that he or she should be spouting off what he thinks happened,” Boothman says. “It often takes time to understand what really happened.”

Instead, caregivers are encouraged to call the Office of Clinical Safety team, which is available around the clock. Team members have training in mediation techniques and can manage patient expectations and present information in context.

The university’s model has been very effective, Boothman says. It avoids the problem of people seeking legal counsel simply because no one will give them an answer. And by not making patients feel abandoned, it’s possible to continue caring for them.

“We’ve learned it’s more important to bolster relationships between caregivers and patients before anything goes wrong. The more trust there is and the more ownership the patients feels over medical decisions, the better they can understand and process it when something goes wrong,” he says.

Wojcieszak likens patients having a good relationship with their physician to the experience of good relationships between neighbors. If your neighbor’s tree falls on your fence, how you react will depend largely on whether you like the neighbor, he says.