This is the third and final article in a series focusing on malpractice, liability, and reform. In the first article, we looked at the background on malpractice and reasons malpractice rates have been so high—including large verdicts and lawsuit-prone physicians. In the second article we considered recent experience and developments in malpractice exposure, who is sued and why. Finally, in this third article, we focus on apologies, apology laws, and liability.
In childhood we are all taught the basic courtesies: “please” and “thank you,” and “I’m sorry,” when harm has occurred. Should we as adult health care providers fear the consequences of apologizing? Apologies are a way for clinicians to express empathy; they also serve as a tool to reduce medical malpractice claims.1
Apologies, ethics, and care
The American Medical Association takes the position that a physician has an ethical duty to disclose a harmful error to a patient.2,3 Indeed this approach has been an impetus for states to enact apology laws, which we discuss below. As pointed out in this 2013 article title, “Dealing with a medical mistake: Should physicians apologize to patients?”,4 the legal benefits of any apology are an issue. It is a controversial area in medicine still today, including in obstetrics and gynecology.
“Ethical codes for both M.D.s and D.O.s suggest providers should display honesty and empathy following adverse events and errors.”1,3,5 In addition, the American Medical Association states, “a physician should at all times deal honestly and openly with patients.”2 Concerns about liability that may result from truthful disclosure should not affect the physician’s honesty (TABLE). Increasingly, the law has sided with that principle through apology laws.
Some patients sue to get answers to the “What happened?” and “Why did it happen?” questions.6 They also sometimes are motivated by a desire to help ensure that the same injury does not happen to others. Silence on the part of the clinician may be seen as a lack of sympathy or remorse and patients may fear that other patients will be harmed.1
The relationship between physician and patient involves vulnerability and requires trust. When an injury occurs, the relationship can be injured as well. Barriers to apology in part reflect “the culture of medicine” as well as the “inherent psychological difficulties in facing one’s mistakes and apologizing for them.” However, apology by the provider may result in “effective resolution of disputes related to medical error.”7
The patient’s perspective is critical to this type of outcome, of course. A study from the United Kingdom noted that one-third of patients who experience a medical error have a desire to receive an apology or explanation. Furthermore, patients need assurance that a plan of action to prevent such a future occurrence is in place.8 Surveys reflect that patients desire, or even expect, the physician to acknowledge an error.9 We will see that there is evidence that some kinds of apologies tend to diminish blame and make the injured patient less likely to pursue litigation.10 For instance, Dahan and colleagues completed a study that highlights the “act of apology,” which can be seen as a “language art.”11 Medical schools have recognized the importance of the apology and now incorporate training focused on error disclosure and provision of apologies into the curriculum.12
Continue to: Legal issues and medical apologies...