“The unintended consequences of these seemingly well-intentioned laws are doctors who can’t apologize for harming their patients even if they want to …”

A recent JAMA article about disclosing medical error described a hypothetical situation involving a dermatologist who, after completing skin biopsies on two patients, discovered that the instruments had not been sterilized. He wondered if he should tell the patients and what he should say.

The authors of the piece said patients should be told what happened, and the doctor should apologize. All concerned parties should review the error, and quality assurance, risk management, and the malpractice insurance carriers should be informed.

The advice is sound and should be followed by anyone who identifies a medical error that could potentially harm a patient.

The authors chose a rather simple scenario. It is very easy for a physician to apologize for an error committed by someone else. It’s a bit different if the doctor is the one who made the mistake.

I support disclosing fully, expressing sympathy, and apologizing and did so myself when I felt I was responsible for what happened.

But a couple of issues are unresolved.

The JAMA article states “health care systems must develop a safety culture. An essential element of this is a culture that fosters open reporting of errors, assists clinicians in disclosing errors, and provides emotional support to stressed personnel involved with the error.”

Four years ago I wrote that most hospitals had not established the so-called “just culture,” and I don’t believe much has changed since then.

A Medscape physician survey late last year yielded this remarkable finding — a whopping 81 percent of those who responded said they thought an apology would not make a difference regarding whether a malpractice suit would be brought or not.

But wait, you say, don’t many states have laws protecting physicians who express sympathy and apologize for mistakes?

According to a 2014 essay by Lisa Kearns in Columbia University’s Voices in Bioethics, 37 states and the District of Columbia have laws excluding apologies from admissibility in court. However, only eight states have laws saying that admissions of fault cannot be used in court, and the circumstances under which admissions of sympathy and fault can be excluded vary widely from state to state.

Ms. Kearns, who is a research associate of noted medical ethicist Arthur Caplan, wrote, “fewer than a quarter of the statutes allow physicians to take responsibility for their actions.” She added, “without an admission of fault or other recognition of responsibility for error, an apology is incomplete — it’s more like a politician’s acknowledgment that ‘mistakes were made.’”

She goes on to argue that these laws may be more about protecting physicians from liability than enhancing the doctor-patient relationship, and concludes, “The legacy of the apology and admissibility law movement has turned out to be a raft of statutes that suggest new ways of protecting the medical establishment from its own mistakes. The unintended consequences of these seemingly well-intentioned laws are doctors who can’t apologize for harming their patients even if they want to [emphasis added] and injured patients who’ve been abandoned by their caregivers.”

Apparently, the 81 percent of physicians polled by Medscape have come to the same conclusion.

“Skeptical Scalpel” is a surgeon who blogs at his self-titled site, Skeptical Scalpel.  This article originally appears in Physician’s Weekly.

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