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The Medical Apology, Is it a Good Idea?

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by Stuart M. Caplen, MD


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 ...



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ABOUT THE AUTHOR


Stuart M. Caplen, MD, FACEP, MSM

Dr. Caplen is a former emergency physician and emergency department medical director, now retired from clinical practice. His current interests include how quality is produced and maintained in health care, and he has greenbelt certification in lean/six sigma.


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 .









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