The concept of the medical apology pits the ethical issue of informing patients about medical errors, some of which they might never have realized occurred, against the deny and defend strategy traditionally used in malpractice litigation.
A study of 30,121 hospitalized patients in New York State found that 0.93% (280) of them had adverse events due to negligence. Only 2.9% (8) of those patients filed malpractice suits.[1] Given the low percentage of litigation where an error occurred causing an adverse event, there is the concern that the medical apology might appreciably increase the litigation rate.
The first documented US institutional use of medical apology was in 1987 at the Veterans Affairs Medical Center in Lexington, Kentucky. The medical center created a policy requiring improved reporting, review of all errors, and notification of patients/families about any error that caused harm, whether they were aware of it or not. If the risk management committee believed that the hospital was at fault, an apology that included admitting fault verbally, and if requested subsequently in writing, was made to the patient/family. An attorney could be present at this meeting if the patient or family desired. There was also discussion with the patient/family of corrective measures taken to prevent the error happening to other patients. The risk management committee then discussed further steps the hospital could take to aid the patient medically, as well as offering to assist in obtaining any entitled disability benefits and making a fair compensation offer for any injury. After initiating this process, the Lexington VA reduced its malpractice claims payments from one of the highest in the VA system to one of the lowest.[2]
This process has been used at the University of Michigan[3], the Erlanger Health System[4] and the University of Illinois Hospital System[5] among other institutions[6]. The University of Michigan reduced its average monthly rate of new claims from 7.03 to 4.52 claims per 100,000 patient encounters and decreased the average monthly rate of lawsuits from 2.13 to 0.75 per 100,000 patient encounters.[3] While results varied by institution, in general an error communication and resolution process with investigation of the incident, apology if an error was made, error correction and offer of fair remuneration resulted in a decrease in claims, decreased legal defense costs, decreased settlement and liability costs and decreased median time to resolve a claim. It is felt that compensating patients for injuries caused by medical errors is an important component of the model. It may help to avoid litigation, provide closure, and establish organizational credibility.
At the Erlanger Health System, the care was felt to be acceptable in 65% of the incidents investigated in their collaborative communication resolution program. If no medical error occurred, an explanation to the patient/family was made for the adverse outcome and why the hospital believed the standard of care was not breached. In the other 35% of incidents where a medical error was found, 85% of those errors caused physical injury to the patient. Almost half (43%) of the instances of errors resulting in patient injury were resolved completely by an apology, with lawyers present at 60% of those meetings.[4] This may indicate that many patients/families only want an apology, explanation of the reason for the adverse outcome, and change in the hospital system to prevent the error from occurring to others.
The way the apology is made is also important, as a poorly planned or an insincere apology may make matters worse. One concept of the makeup of an authentic medical apology is the four R’s by Dr. Michael Woods. There must be Recognition that an apology is needed. There should be an expression of Regret. Expressing empathy such as “I am so sorry; I know this outcome is not what you expected, it is not what I expected either,” does not admit guilt but may help to reinstitute a therapeutic relationship. The third R is Responsibility, an explanation of what happened and why it happened, and what is being done to protect others in the future. Finally, what is going to be done to Remedy the situation for the patient, including who will pay the needed costs for that remediation.[7]
In order to increase the use of medical apology and provide some legal protection for the practice, 39 states have enacted apology laws which exclude the use of the apology in any malpractice litigation. There are major differences in the statutes depending on the state. Vermont for example, covers oral but not written apologies. Some states only protect an apology, while others protect both the apology and an admittance of fault. A few states have mandated error reporting to the patient/family when there is an adverse outcome.[8]
A study of malpractice claims comparing states with and without apology laws, found apology laws had no effect on surgeon claims. For non-surgical practitioners there was actually an increase in malpractice litigation in apology law states. Thus, apology laws by themselves do not appear to reduce the malpractice liability risk. It should be noted that this study did not determine whether more apologies were actually being made in apology law states, and just compared malpractice claims data.[9]
Conclusions
It appears that a formalized error communication and resolution process can reduce the litigation and the settlement costs of medical errors. The process is ethically sound and may be beneficial for patients and families. It consists of an investigation of the incident, an apology if an error was made, an offer of fair remuneration for the error, and having a process in place to try to prevent future similar errors.
A heartfelt apology to the patient for delays or other care issues that don’t cause significant harm is generally recommended. However, an individual practitioner apologizing for medical errors that result in injury without a formalized error communication and resolution process set up, may possibly increase the chance of litigation. An important part of an error communication and resolution process is compensation for the error, or the remedy part of a medical apology, which an individual practitioner cannot offer. A practitioner may wish to speak to an attorney, malpractice carrier or be in situation where a formal process has been previously instituted before proceeding.
Apology laws, while well intentioned, may not actually provide much protection from litigation for practitioners.
References:
[1] Localio R et al., Relation between Malpractice Claims and Adverse Events Due to Negligence — Results of the Harvard Medical Practice Study III, N Engl J Med 1991; 325:245-251. Retrieved from: https://www.nejm.org/doi/full/10.1056/nejm199107253250405
[2] Cohen J. Apology and Organizations: Exploring an Example from Medical Practice. Vol. 27 Fordham Urban Law Journal, 447-82, (2000). Retrieved from: https://ir.lawnet.fordham.edu/ulj/vol27/iss5/8 .
[3] Boothman R et al, Nurturing a Culture of Patient Safety and Achieving Lower Malpractice Risk Through Disclosure: Lessons Learned and Future Directions, Frontiers of Health Services Management, 2012 Spring;28(3):13-28. Retrieved from: http://www.med.umich.edu/news/newsroom/Boothman-ACHE-Frontiers.pdf
[4] Lecraw F et al., Changes in liability claims, costs, and resolution times following the introduction of a communication-and-resolution program in Tennessee, Journal of Patient Safety and Risk Management, February 14, 2018. Retrieved from: https://doi.org/10.1177%2F1356262217751808 .
[5] Lambert B. The “Seven Pillars” Response to Patient Safety Incidents: Effects on Medical Liability Processes and Outcomes, Health Services Research, December 2016. Volume 51, IssueS3, Pages 2491-2515.
[6] Kachalia A et al., Effects of A Communication-And Resolution Program On Hospitals’ Malpractice Claims And Costs, Health Affairs 37, No.. 11 (2018): 1836–1844.
[7] Baum N, Apology: The Power of “I’m Sorry” in Patient Satisfaction (and Avoiding Litigation), Patient experience.com, September 10, 2012. Retrieved from: http://patientexperience.com/apology-power-im-sorry-patient-satisfaction/ .
[8] McDonnell WM, Guenther E, Narrative Review: Do State Laws Make It Easier to Say “I'm Sorry?”, Annals of Internal Medicine, 2 December 2008 Vol: 149, Issue 11, 811-815.
[9] Benjamin J et al., “Sorry” Is Never Enough: How State Apology Laws Fail to Reduce Medical Malpractice Liability Risk, Stanford Law Review, Feb 2019, Vol.71 p 341-409. Retrieved from: https://review.law.stanford.edu/wp-content/uploads/sites/3/2019/02/McMichael-71-Stan.-L.-Rev.-341-2019.pdf .