I heard an interesting story today on KYW News Radio (1060 AM in Philadelphia) concerning whether a doctor should apologize to a patient after he or she has made a medical mistake.
There are both legal and ethical issues that may need to be considered before a doctor issues an apology. In addition, the doctor may need to be careful in how he expresses his or her apology, since the laws related to such apologies vary by state.
The story caught my attention, so I decided to look a bit further into the issue, and came across an article that seems to explain the issues fairly well.
The conventional answer is that a physician should NOT apologize. The theory underlying that answer is that in a subsequent civil suit by the patient, the apology could be admitted into evidence against the physician. For a number of reasons, though, this conventional answer may not always—or even usually—be the correct one.
The American Medical Association has long taken the position that a physician has an ethical duty to disclose a harmful error to a patient. In practice, it may be difficult to disclose, let alone describe, an error without apologizing. Failure to accompany the disclosure with an apology might be interpreted by the patient as a lack of remorse.
If the error occurs in a hospital, The Joint Commission requires that the hospital disclose it to the patient. This requirement, like the AMA’s ethics rule, may put the physician in the position of either apologizing or appearing callous.
Several states have also enacted so-called “Apology Laws,” which should mitigate the conflict a physician faces when trying to meet the patient’s desire for an apology while avoiding self-incrimination.
These Apology Laws change the traditional evidentiary rule by providing that apologies are not admissible in civil actions for medical errors.
Apology Laws fall into two categories. One category protects apologies and acknowledgements of fault—admissions of responsibility—that go with the apologies. Colorado has a statute in this category. The second category protects the apology itself but not any acknowledgement of fault. Indiana has this second category. The “communication of sympathy” is inadmissible, but a “statement of fault” ( if any is made) remains admissible.
Here’s an example of how this would work in each of the two states noted above.
Assume, for example, that a Colorado physician and an Indiana physician each said to a patient, “I made a mistake. I’m sorry.”
In Colorado neither sentence could be used as evidence against the physician. In Indiana the first sentence could be used as evidence, but the second sentence could not.
In practical terms, this means that the Indiana physician making an apology must take great care in formulating and expressing the apology. The physician would be well advised to consult an attorney to formulate the precise wording of any apology.
Despite the legal concerns, there is also a practical side associated with making an apology.
There is good evidence indicating that instead of increasing lawsuits and awards to patients, apologies actually reduce both the incidence of lawsuits and the amount of awards. Evidence from multi-year studies at both the Veterans Administration Hospital of Lexington, Kentucky, and University of Michigan Health support this conclusion.
According to Lucian L. Leape, MD, of the Harvard School of Public Health, what the victim of a medical error most desires is that the physician:
- acknowledge the error and explain it
- take responsibility and apologize
- find the underlying cause and prevent its recurrence.
So what’s a doctor to do?
Given that a physician is obligated to disclose the error by professional ethical considerations, regulatory requirements, and by statutes in many states, such disclosures could seem callous if not coupled with an apology. Since many states have Apology Laws that bar the apology from admission into evidence, it seems that the best course of action is to issue an apology, and doing so may be the very action that prevents a lawsuit from being filed.
Personally, I’ve always felt that there’s no downside to making an apology, but offering one can help diffuse a difficult or emotional situation.
And while I can’t claim credit for this closing line, it seemed perfect:
“to err is human, to apologize may be benign”
(Donald Trump could learn from this…)