Doctors saying sorry to patients after medical errors is the right thing to do

What are two of the hardest words for a doctor to say?

“I’m sorry.”

Evan Falchuk, speaking from a legal perspective, understands why some defense lawyers counsels physicians not to apologize to patients: “If you say you’re sorry for something, you are implicitly taking some degree of responsibility for whatever has happened. Plaintiff’s lawyers will use a doctor’s apology to the maximum extent possible to show the doctor knew what they did was wrong.”

But apologizing after a medical error is the humane thing to do. Indeed, patients often sue simply because it’s the only way to find out what went wrong.

Erecting a wall of silence, however, is “enough to make someone very angry. And it’s awfully easy for an angry person to find a lawyer who will listen to them. At that point, it’s too late for sorry.”

Already, 35 states have passed laws prohibiting doctors’ apologies from being used against them in court. It’s time to nationally remove that impediment which prevents doctors from doing what’s right.

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  • skepticus

    And what shall we call this nation law? “THe Clearning Physicians’ Guilty Minds For Free Act.” Honorable doctors should say they’re sorry if they did something wrong. The legal consequences shouldn’t matter to such doctors because apologizing for error that one is responsible for is THE RIGHT THING TO DO.

    Doctors are always blabbing about their higher moral calling–ahh, but when the rubber hits the road, they avoid moral responsibility. And, the legislation kevin advocates is simply an accountability avoidance mechanism. No wonder doctors like it.

  • http://www.MDWhistleblower.blogspot.com Michael Kirsch, M.D.

    Physicians, and everyone else, has a moral obligation to apologize when an action has injured someone. Physicians who do so may deepen their legal vulnerability, which does not encourage physicians to do the right thing. Moreover, the apology laws which shield physican apologies from legal discovery are narrowly constructed. The doctor can express regret for the patient’s condition, but if he says he’s sorry that he made a mistake, then that statement is legal fair game.

  • Robby

    I guess I don’t understand something.

    If a doctor screwed up and apologized, why should he be shielded from that? He did in fact screw up….hence the apology.

    Is it any better that doctors can get away with screw up’s by lying to the patients hence saving their OWN BUTT?

  • Anonymous

    skeptikus:

    >>Honorable doctors should say they’re sorry if they did something wrong. The legal consequences shouldn’t matter to such doctors because apologizing for error that one is responsible for is THE RIGHT THING TO DO.>>

    I agree 100%. Unfortunately, I think this group represents a minority of physicians. Admitting infallibility isn’t part of medical training.

    >>they avoid moral responsibility. And, the legislation kevin advocates is simply an accountability avoidance mechanism. No wonder doctors like it.

    Kevin MD practices in a state with a basic “I’m sorry” law. I live in a state with a similar law. This, however, did not prompt my physician to apologize to me for a medical error. Instead, she made efforts to encourage me to continue to come to her for follow-up (I did so for a while, until my family and friends begged me to seek a second opinion). She became insulting and accused me of not following instructions, thus resulting in the poor outcome. She was condescending and controlling when I requested medical records and referral elsewhere. Unfortunately, instead of behaving like the confident physician I thought she was, she revealed herself as small, self-righteous, and morally deficient – willing to actually compromise appropriate care for her patient rather than admit to a poor outcome. The irony is that I wanted her to take care of me, no matter what the reason for the complication… at least until I saw her for what she was as a person. Despicable. She fooled me; she’s a fine physician as long as she’s perfect technically. There’s a problem there.

    Michael Kirsch, M.D.:

    >>The doctor can express regret for the patient’s condition, but if he says he’s sorry that he made a mistake, then that statement is legal fair game.>>

    See above. Many physicians aren’t even willing to express sympathy without admitting fault – and patients aren’t necessarily looking for an admission of fault.

    Good luck changing the culture of medicine.

  • Anon

    Of course apologizing is what a physician should do after he makes a mistake. Unfortunately, a malpractice lawyer would simply use that as an admission of guilt and disregard the facts of the case. To make a physician’s apology inadmissible in court does nothing to the facts of the case, and if a neglectful medical error occurred, then it will still come out in the end and the plaintiff will have their day.

    Malpractice has to be negligent, not simply an accident that any physician could make on a given day. An apology for an accident that all humans make should not be spun as an admission of negligent practice by a lawyer.

  • jenga

    Has a malpractice attorney ever apologized to a physician for bringing a case that was dismissed or lost?

  • http://www.docrates.org prady

    Everyone makes mistakes, doctors do too…And the doctors should apologise and say sorry.
    I agree with the apology not to be used in court.

  • twaw

    hmmm…when I was learning to drive (admittedly more than a few decades ago) I was given the same information in driver’s ed. If you are in an accident, make sure everybody is ok, notify authorities, exchange information, and NEVER voluntarily admit fault (presumptively because of the land sharks). Have the rules of the road changed?

  • http://www.seefirstblog.com Evan Falchuk

    Thanks for the link, Kevin.

    At least one of the commenters get the point of my post.

    Doctors should apologize if something goes wrong because it’s the right thing to do.

    If there is some kind of malpractice, there will be plenty of evidence to show it. Doctors shouldn’t have to think twice about acting like decent human beings because of fears of litigation.

    But the real pity is that we should need a law like the ones that have been passed in these 35 states.

    It shouldn’t be necessary. Lawyers ought to be ashamed to raise such good, decent behavior as evidence of wrongdoing.

    Cheers,

    Evan Falchuk

  • http://healthblawg.typepad.com David Harlow

    The benefits of apologies are many. IHI has published on the reduction of medical errors in a provider organization whose culture includes the medical apology. Harvard and U of Michigan affiliates have found dramatic reduction in malpractice liabilities as a result of medical apologies policies. The psychic benefit to clinician and patient are beyond value. As part of my health care law and consulting practice, I provide training to boards and practitioners on the value of medical apologies and the implementation and tracking of appropriate policies and procedures. As they say, “Sorry Works.”

  • Rezmed09

    Anybody who reviews charts knows that errors occur all the time. I would venture to say that there is some form of med error, hand off error, delay of diagnosis, feeding error, or complication in ~50% of hospitalizations. Many of these are potentially compensable, but most often not to degree that would make it economically worthwhile pursuing a tort claim. Maybe the solution is to have a follow up letter given to the patient and their attorney at the end of every hospitalization listing every “opportunity for improvement.”

    In the meantime the polarization of our country on how we feel about our medical care, our expectation of perfection and our need for revenge will prevent any honest discussion.

  • http://curbside.posterous.com Nuclear Fire

    @ Anon 1127: Oh, what medical school did you go to where they taught you that (assuming you meant fallible) because mine certainly didn’t? Could it be your singular bad personal experience is leading you to make a categorically insulting statement?

  • http://www.academicobgyn.com Nicholas Fogelson

    Its very important for physicians to be able to apologize for a mistake without that being used against them in a court of law. Physicians make mistakes from time to time, like every human being, but legally it takes more than a mistake to constitute negligence.

    If I accidentally injure the bowel during a hysterectomy surgery, I have made a technical error, but not necessarily done something negligent. As long as I properly manage that complication and the patient was notified of the potential complications of surgery, this should not be negligence.

    That doesn’t mean I wouldn’t feel very bad that this problem happened to the patient. I would very much want to apologize that this happened, and even be able to clearly explain why it happened, if it was just because I made a technical error. It would be far better than just saying “these things happen it wasn’t my fault”.

  • W

    There seems to be something in the whole culture of health care that resists accepting overt responsibility for mistakes. I can understand a doctor’s reluctance to say “I’m sorry”, but it often seems that any type of error one encounters — billing snafu, misplaced chart, appointment mixup — results in the patient being made to feel like it’s somehow his/her fault. Have never heard apologies from administrative or support staff. What’s preventing that?

  • Millcreek

    I am reposting my September 2009 comments to a similar thread. It is still relevant to this thread.

    MillCreek September 18, 2009 at 11:21 am
    I have worked in healthcare risk management and claims defense for almost 30 years now. I was advocating apologies long before any sort of shield law in my state. In my view, it is simply the right thing to do. Based on my anecdotal observation of hundreds of claims over the years, I don’t think that apology provides any sort of robust prophylaxis against litigation. It may prevent the occasional case from being filed, and it may soothe the anger on the part of the patient or family, such that a lesser amount of a settlement is accepted.

    If you really talk to the Michigan people, they will indeed agree that their apology/disclosure/settlement program is not in and of itself the sole reason for their reduction in claims expenses. It is in conjunction with other tort reform and loss control efforts. They can say with a straight face that the timing of the reduction in claims expenses coincided with the onset of their disclosure/settlement program, but it is more of a correlation than causation.

    I very much agree with the concepts of the SorryWorks people, and was using the same approach long before they came on the scene. I just do not buy into the belief that apologies will substantially reduce the number of malpractice claims. Probably the best way to determine if apologies start reducing claims in a significant way will be when the malpractice insurance company acturaries start reducing the premium in a meaningful way if you have an apology program. i have not yet seen any data from Tillinghast or Milliman suggesting that this is happening.

    7 MillCreek September 18, 2009 at 11:28 am
    I forgot to mention in my earlier comment that many of my defense legal and risk management colleagues are admanantly against apologizing because they feel it will increase litigation. Other than anecdoctal reports, I am unaware of any data that supports this contention.

    What does concern us is the difference between an apology and an admission of liability. I think apologies are peachy but discourage the admissions of liability unless I am involved in the process. Apologies rarely come back to bite you on the ankle, but admissions of liability sure can.

  • Anonymous

    Nuclear Fire:

    >>Oh, what medical school did you go to where they taught you that (assuming you meant fallible) because mine certainly didn’t?>>

    Actually, I attended veterinary school, where we learned to say “I’m sorry”. From a purely selfish standpoint, it’s served me well over the years – I can sleep at night.

    >>Could it be your singular bad personal experience is leading you to make a categorically insulting statement?>>

    Sure, but I don’t know to which statement you are referring.

    Nicholas Fogelson:

    >>As long as I properly manage that complication and the patient was notified of the potential complications of surgery, this should not be negligence>>

    As you know, “negligence” and “complication” are not synonymous. Both can result in harm to the patient, though.

    >>That doesn’t mean I wouldn’t feel very bad that this problem happened to the patient. I would very much want to apologize that this happened, and even be able to clearly explain why it happened, if it was just because I made a technical error. It would be far better than just saying “these things happen it wasn’t my fault”.>>

    Actually, I think it is a choice NOT to apologize. What stops you from saying “I’m sorry”?

    Speaking as a patient now, not as a doctor (though I’ve been on the other side, and it’s a humbling experience), I don’t care how bad my former physician feels about the poor outcome. She probably does feel bad.

  • dani

    I was refused medical help after an ER doctor put false information in my medical records.My condition had been life threatening before and after the spinal tap.This left me in a critical condition without medical help and a hospital was refusing me care.I was left with abnormal gait, a latency of speech, photo-phobic,weak,with an inflamed body and brain,drowsy and in a state of hyperventilation.Even a animal would not have been left like that..They then went to great lengths to cover this all up at my expense. I won’t give all the details but they are disturbing and would be to any medical professionals who cares about patients.
    No apology will be enough for the damage and pain I have to live with and my struggle to stay alive in that condition for 4 months before I was given IV antibiotics.It was very easy to take advantage of someone who has no ability to help themselves and a family that would be told NOTHING..All information and test results were intentional being withheld to deceive my family who were not around..