Unanticipated Medical Outcomes – Disclosure and Apology
It has been twenty years since the Institute of Medicine report To Err is Human: Building a Safer Health System was released. Pioneers such as the University of Michigan, University of Illinois, the Veteran Affairs Medical Center in Lexington, KY, and the Agency for Healthcare Research and Quality (AHRQ) undertook the challenge to research and develop methods to communicate medical errors and other adverse outcomes to patients and families. Disclosure, apology, and potential resolution present particularly challenging topics in the setting of medical professional liability, where state and federal laws and regulations can impact the scope of communication and the ability to resolve matters short of a formal claim.
MIEC remains committed to solving these challenges as part of the evolving landscape of healthcare. The following article offers some recommendations on how providers can manage difficult conversations with patients and families following an unexpected adverse outcome.
What Does “I’m Sorry” Mean?
In the course of their careers, physicians experience numerous opportunities to offer an expression of sympathy, condolence, regret, or apology to patients and their families. Simply saying, “I’m sorry” can convey a variety of messages, depending on the context in which the statement is made.
Throughout much of the history of medical malpractice litigation, defense attorneys counseled physicians to avoid saying “I’m sorry,” based on the likelihood that a plaintiff attorney would later present such a statement as an admission of liability. Dr. Lucien Leape, a Professor at the Harvard School of Public Health and pioneer of patient safety, disagreed with the assumption:
“For decades, lawyers and risk managers have claimed that admitting responsibility and apologizing will increase the likelihood of a patient filing a malpractice suit and be used against a doctor in court if they sue. However, this assertion, which seems reasonable, has no basis in fact. There is to my knowledge not a shred of evidence to support it. It is a myth.”1
Current literature demonstrates both the benefits and risks of apology. Fortunately, many healthcare providers understand that doing the “right thing” as a provider involves prioritizing the patient’s needs over legal self-protection. Disclosure of unanticipated outcomes, and apology when appropriate, is an essential part of patients’ therapeutic process.
“I’m Sorry” Legislation
Many states have passed laws to protect health care providers in the setting of expressions of empathy, compassion, and/or condolences to injured patients. In California, a physician’s verbal expression of sympathy for patients’ untoward outcomes are protected from being used in a civil action as an admission of liability; however, if the physician admits that he/she was negligent, that statement is admissible in court. Idaho law makes physicians’ expressions of apology, condolence and sympathy, and their accompanying explanation of what happened, inadmissible as evidence of liability. Similar to in California, statements of liability are admissible in Idaho, so care must be taken to make certain that an expression of apology or an accompanying explanation do not also contain an admission of fault. Similar laws are in place in Hawaii and in Alaska. (See Table A for apology statute references.)
Alaska Alaska Statute 09.55.544 (a)(1) and (b):
(a) In a civil action or arbitration under AS 09.55.530 – 09.55.560, notwithstanding AS 09.43.050 (2), 09.43.420(a), or 09.43.440(e), the following are not admissible as evidence:
(1) an expression of apology, sympathy, commiseration, compassion, or benevolence made orally, by conduct, or in writing by a health care provider or an employee of a health care provider to a patient, the patient’s relative, or a legal representative of a patient concerning an unanticipated outcome of medical treatment or care regarding the patient’s discomfort, pain, suffering, injury, or death. . .
(b) If an expression of apology, sympathy, commiseration, compassion, or benevolence made under (a)(1) of this section is made in conjunction with an admission of liability or negligence, only the expression of apology, sympathy, commiseration, compassion, or benevolence is inadmissible, and the admission of liability or negligence may be admissible as evidence.
California Evidence Code §1160:
(a) The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section.
(b) For purposes of this section:
(1) “Accident” means an occurrence resulting in injury or death to one or more persons which is not the result of willful action by a party.
(2) “Benevolent gestures” means actions which convey a sense of compassion or commiseration emanating from humane impulses.
(3) “Family” means the spouse, parent, grandparent, stepmother, stepfather, child, grandchild, brother, sister, half-brother, half-sister, adopted children of parent, or spouse’s parents of an injured party. –
Hawaii Hawaii Revised Statutes, Title 33, §626, Rule 409.5:
Evidence of statements or gestures that express sympathy, commiseration, or condolence concerning the consequences of an event in which the declarant was a participant is not admissible to prove liability for any claim growing out of the event. This rule does not require the exclusion of an apology or other statement that acknowledges or implies fault even though contained in, or part of, any statement or gesture excludable under this rule.
Idaho Idaho Statutes Title 9, Chapter 2, §9-207:
Admissibility of expressions of apology, condolence and sympathy.
(1) In any civil action brought by or on behalf of a patient who experiences an unanticipated outcome of medical care, or in any arbitration proceeding related to, or in lieu of, such civil action, all statements and affirmations, whether in writing or oral, and all gestures or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence, including any accompanying explanation, made by a health care professional or an employee of a health care professional to a patient or family member or friend of a patient, which relate to the care provided to the patient, or which relate to the discomfort, pain, suffering, injury, or death of the patient as the result of the unanticipated outcome of medical care shall be inadmissible as evidence for any reason including, but not limited to, as an admission of liability or as evidence of an admission against interest.
(2) A statement of fault which is otherwise admissible and is part of or in addition to a statement identified in subsection (1) of this section shall be admissible.
(3) For the purposes of this section, unless the context otherwise requires:
(a) “Health care professional” means any person licensed, certified, or registered by the state of Idaho to deliver health care and any clinic, hospital, nursing home, ambulatory surgical center or other place in which health care is provided. The term also includes any professional corporation or other professional entity comprised of such health care professionals as permitted by the laws of Idaho.
(b) “Unanticipated outcome” means the outcome of a medical treatment or procedure that differs from an expected, hoped for or desired result.
What is a Physician to Do?!
Defense attorneys, professional liability carriers, risk managers, and physician consultants have long known that patients often bring lawsuits against their physicians to seek justice for something they perceived as wrong. First, they have been injured, or believe they were injured. Second, they are angry- often because of not having their questions answered, about being given too little information about their condition and treatment, because they were treated coldly or dismissively, and due to other real or perceived slights during treatment.
Our advice: talk to your patients, early and often. Good communication should begin before treatment is rendered, and this will hopefully prepare patients for the possibility of an adverse outcome as part of the risk assumed in proceeding with treatment. In the event of an adverse outcome, whether or not it was anticipated, it is crucial that you disclose the outcome as soon as possible.
Experts in disclosure and apology maintain that there are four components of disclosure that patients desire the most:
- Disclosure of all harmful errors;
- An explanation as to why the error occurred;
- How the error’s effects will be minimized;
- Steps the physician (and organization) will take to prevent recurrences.2
Anticipate and prepare BEFORE you are confronted with an unexpected adverse outcome:
Establish and maintain a strong physician-patient relationship founded on trust and a warm and communicative rapport with patients.
Introduce new patients to you, your staff and your policies by giving them a “Patient Information Brochure” or direct patients to your website for this important information.
Ensure that your staff is well-trained to welcome patients to your practice and convey interest in their well-being, both on the phone and in person. Hire staff who will convey warmth and reassurance to patients.
Ensure that your staff knows how to respond to patient complaints to avoid escalation of perceived problems. Establish policies and procedures defining who will manage complaints about clinicians, staff, and billing issues.
Educate patients about their disease, condition, general health, medication, or other treatments. Give them written information about these topics and your advice, or refer them to helpful healthcare information online (perhaps even on your website). Tell them to read the educational materials and invite them to ask questions if they have any. Document that you’ve done so.
Lay the groundwork for future discussions by having a thorough informed consent discussion prior to invasive procedures or other risk-inherent treatment. Remember that informed consent is a process, not a form. Obtaining informed consent is an opportunity to educate patients, answer patients’ questions, reassure patients, strengthen the doctor-patient relationship, promote shared decision-making practices, and to realistically establish patients’ expectations.
Thoroughly document your care, including justification for medical decisions; patient education efforts; plus, informed consent and informed refusal discussions.
Disclosure Training– Consider in advance, informally (with trusted colleagues) and formally (in appropriate committees or groups for that purpose), what you might do if faced with a situation in which a patient suffers an unexpected, adverse outcome in which you played a role. These discussions needn’t involve actual cases that might be discoverable, but hypothetical circumstances of the kind physicians are likely to face. Include consideration in advance of what you might do if you were faced with such a situation and lacked the opportunity to call MIEC for advice about how to proceed.
What to do if you are involved in, believe you have contributed to, or are implicated in an unexpected adverse outcome:
Call MIEC Claims & Patient Safety as soon as possible. Talking to an injured patient in a timely manner is paramount to good communication. MIEC staff will review the situation with you in entirety, and will counsel you on the most prudent and appropriate course of action. If appropriate, MIEC can retain an attorney to participate in the discussion and consult with you on subsequent decisions.
Please note that, if an adverse event occurs outside normal business hours and you are unable to consult urgently with MIEC, you may need to talk briefly with the patient and/or family in order maintain timely communication. In such a situation, you should focus on reporting facts as they are known and on expressing sympathy and support; you should avoid attempting to explain the cause of the event, or assessing responsibility, until consulting further with MIEC staff.
Importantly, attorneys caution against making statements of liability or “fault” even if it appears obvious- this is because some physicians may become so overwhelmed by an adverse outcome that they are prematurely self-critical, when in fact their care was entirely appropriate and/or did not contribute to the patient’s injury.
Know your hospitals’ disclosure policies, especially the specific steps to take in the face of an unanticipated adverse outcome in the hospital.
With the help of MIEC staff, determine whether you will offer an apology, an expression of sympathy, an accurate and objective explanation, a promise for an investigation, or some other demonstration of your sincere response to the situation. (In some instances, if the situation is hospital based, it may be appropriate to work cooperatively with the hospital risk manager.)
With the help of the MIEC staff, determine what events and details will be disclosed, if any. Determine when disclosure will take place, who should be present, who will conduct the discussion, what should be said and to whom, who will say it, and where the meeting will be held (in a private setting, for instance).
If you offer an apology or an expression of sympathy and an accompanying explanation, you may want to have a colleague, nurse or other person present to observe and listen. In the event you are accused of admitting liability and not “just” apologizing and explaining, a witness to the conversation will be helpful.
If you will be involved in lengthy discussions about sensitive issues with the patient or family, respect the patient’s cultural frame of reference, ability or disability, cognitive skill level, education, language, religion, or any other factor that may influence how you communicate.
If an investigation will be forthcoming, determine what will be done and by whom (policyholder, hospital, internal review committee, MIEC, other professional liability carrier), and what will be done with the investigative results. If the patient or patient’s family is to be informed of the findings, determine who will be responsible for conveying the information, and whether it will include details about accountability, personal responsibility, and/or resultant policy changes.
DO NOT change anything in the patient’s chart. If you believe that something is in error or requires an amendment, call MIEC to discuss how to proceed.
What to focus on during the disclosure and apology conversation:
Be aware that when patients are injured, they want three things to happen:
- Sincere sympathy and/or an apology;
- A show of concern;
- If they were injured by an untoward event, a commitment to ensuring that no one else is injured in the same way in the future.
Many patients also want an explanation for what happened and why; physicians can advise the patient or family member that every effort will be made to understand the circumstances of the event. It is important to then follow through with that promise, with the assistance or advice of MIEC.
Avoid casually placing blame and finding fault. (These actions are distinctly separate from assigning or taking personal responsibility when it is appropriate to do so.)
Avoid any interruptions from staff. If conversation takes place in your office, ensure that staff is instructed to avoid any interruptions both in person and telephonically.
Focus on the patient’s experience, which may prevent the conversation from becoming adversarial and help you avoid the possibility you will become defensive.
Do not discuss offering financial assistance or compensation with anyone without first consulting with MIEC about the feasibility, risks/benefits, and other implications of compensation. If a patient specifically asks for compensation, advise that you will discuss that after the patient is medically stable and other immediate aspects of the situation have been taken care of.
Document accurately, specifically and objectively all discussions you have with the patient and/or the patient’s family about the subject event, including what you said and the patient’s response, and contributions by others present—in the patient’s chart. DO NOT document privileged discussions with the Claims analyst or your defense attorney, if you have one, in the patient’s chart.
Recommend, organize or participate in a program designed to provide emotional support to physicians who have had to admit to a patient or patient’s family an error that caused a patient injury. Although the process of making an apology to a patient is frequently a healing experience for patient and physician alike, it is not without consequence to either. Many physicians, following closure with the patient or patient’s family, benefit from a “debriefing” process in which they experience closure with their internal critic as well. Prior to establishing such a group, consult with MIEC’s Claims and Patient Safety Department, local or state medical society, or defense attorney to ensure that the group does not discuss discoverable events, but focuses on the emotional impact of having experienced a sensitive patient interaction that involved saying “I’m sorry.”
If you have any questions or wish to consult with a staff member from MIEC’s Claims and Patient Safety Department, please call us at (800) 227-4527.
1 Leape, Lucian, MD, “Full Disclosure and Apology—An Idea Whose Time has Come,” ThePhysicianExecutive, March-April 2006, p. 17.
2 AHRQ’s Patient Safety Network: https://psnet.ahrq.gov/primers/primer/2