Rhode Island and eight other states are considering bills that would allow physicians to apologize when things go wrong without having to fear that their words will be used against them in court.
Steven Minicucci, a Providence lawyer who handles malpractice suits, says that displays of compassion are rarely useful in building such cases. But an apology and an admission of error could be key evidence. He opposes the Rhode Island legislation.
"I like to call it the 'I'm-sorry-I-killed-your-mother'" bill, Minicucci said. "If a doctor comes out and says something like that, he shouldn't be able to immunize himself against statements like that by couching it in an apology."
Trial lawyers also call Rhode Island's bill unfair and overly broad because it could bar some internal hospital reports on medical errors from becoming evidence.
The American Medical Association (AMA) says that at least 27 other states have already passed similar "I'm sorry"; laws, nearly all of them in the past four years,
A recent Associated Press story reported that the wave of "I'm sorry" laws is part of a movement in the medical industry to encourage doctors to promptly and fully inform patients of errors and, when warranted, to apologize. Some hospitals say apologies help defuse patient anger and stave off lawsuits.
Apology laws vary by state. In Arizona, Connecticut, Idaho, Maine and 11 other states, doctors can safely apologize to patients or their families about an undesirable or unexpected outcome, according to the AMA.
A law in Vermont exempts only oral statements of regret or apology, not written ones. Illinois gives doctors a 72-hour window to safely apologize after they learn about the cause of a medical mishap.
Last month North Dakota Gov. John Hoeven signed into law a bill that allows physicians and other health care professionals to express sympathy to patients when an adverse event occurs without the statements being used against them in court.
Physicians Want To Apologize
According to a survey of more than 1,000 physician members of the American College of Physician Executives (ACPE), physicians want to say "I'm sorry."
The 2006 "Patient Trust and Safety Survey," found that 81% of doctors said health care organizations should encourage apologies for medical errors; 55% of doctors said their organizations encourage making apologies to reduce lawsuits. On the flip side, interviews with 1,000 patients showed 57% said they would be less likely to sue if the doctor or hospital that made the medical mistake issued an apology, while 25% said they would be more likely to sue.
Bill Steiger, editor of the ACPE's Physician Executive Journal, said that "doctors really want to say 'I'm sorry' but are being told by lawyers and other legal counsel not to, because doctors' statements could be used against them as an admission of guilt."
It seems that patients also want to be forgiving when treated fairly.
The AMA reported in 2000 that one study found almost a quarter of suits were prompted by patients' realization that physicians had failed to be completely honest or had intentionally misled them when a mishap occurred. More than a third of British patients participating in another study said they wouldn't have sued had they been offered a full explanation and apology.
What Patients Will Forgive
A January 2005 survey in The American Journal of Managed Care, 958 people found some circumstance more forgivable than others.
What should doctors apologize for and what should be disclosed?
A survey entitled "U.S. and Canadian Physicians' Attitudes and Experiences Regarding Disclosing Errors to Patients" was published in Archives of Internal Medicine in August of 2006 provides some guidance.
What kind of medical errors are you willing to disclose to patients?
- Serious error 98%
- Minor error 78%
- Near miss 35%
What can make a decision to disclose medical errors to patients less likely?
- Patient won't understand 60%
- Patient won't want to know 30%
- Patient is unaware of error 21%
- I might get sued 19%
- Don't know patient very well 13%
- Patient may get angry 10%
How much do you disclose to patients?
- Mention adverse event but not error 56%
- Explicitly say that error occurred 42%
- None 3%
How do you say you're sorry?
- Express regret 61%
- Explicitly apologize 33%
- Offer no apology 6%
What future steps will you take to avoid errors?
- Give nonspecific pledge 54%
- Present specific steps 37%
- Give no information 9%
"These attitudes may stem much more strongly from the culture of medicine than from the external malpractice environment," said Dr. Gallagher, who led a team that surveyed 2,367 physicians in Canada and in Washington and Missouri—two states classified as "in crisis" on the AMA's medical liability map.
Implementation and Success
In March of 2006, Harvard's 16 teaching hospitals unanimously agreed to communicate with patients and their families about adverse events using this format:
Immediately after the event:
- Acknowledge the event
- Express regret
- Take steps to minimize further harm to the patient
- Explain what happens next
- Commit to investigate and find out why the adverse event occurred
- Later follow-up
- Disclose the results of the internal investigation
- Apologize if there was an error or systems failure
- Make changes to prevent the failure from recurring
- Provide continuing emotional support to the patients and the health professionals involved
Though routinely disclosing and apologizing after adverse events is still rare, Harvard's initiative is not the first of its kind. The Lexington Veterans Affairs (VA) Medical Center has had such a policy in place since 1987. Denver-based physician-run medical liability insurer COPIC Insurance Co. has a similar program, and the University of Michigan Health System says it is saving $2 million a year in litigation costs thanks to its initiative.
The Lexington VA Center began investigating incidents and offering patients settlements up-front. The center began the investigations so it could better defend itself against lawsuits. But after an investigation showed there was negligence that a patient didn't know about, the hospital decided it had an ethical obligation to tell the patient.
It went so well that the hospital continued the policy, said Steve S. Kraman, M.D., who was chief of staff at the Lexington facility when the program began.
The hospital made the full disclosure because it was the right thing to do for the patient, Dr. Kraman said, but it had side benefits. Claims that the Lexington facility paid were comparable, and in some case less, than other VA facilities, according to a study in the December 1999 issue of the Annals of Internal Medicine.
"We paid for more claims, but the average claim was smaller," Dr. Kraman said. He also said the VA was taken to court only three times in his 16 years there - a far lower number of cases than would have been likely without the program.
Hillary and Obama Plan
Presidential candidates Sens. Hillary Rodham Clinton (D, NY) and Barack Obama (D, Ill) teamed up in 2005 to introduce the National Medical Error Disclosure and Compensation Act of 2005. Based in part on state and private-sector initiatives, the legislation aimed to reduce liability-related costs by heading off expensive lawsuits with apologies and financial compensation from doctors.
Physicians, hospitals, insurers, and others who choose to enroll in the voluntary program would set up a system for identifying safety lapses and informing patients. The patients then could choose to participate in a negotiation process in which they would review compensatory offers from the physician or entity at fault. If someone rejects the offers and sues the doctor anyway, he or she would be unable to use the negotiation proceedings as evidence in court.
The proposal embraces the concept that early acceptance of responsibility by physicians who make mistakes often results in the patients deciding not to sue, Obama said.
"Across America, hospitals and medical providers are proving that there's a better way to protect patients and doctors, all while raising the quality of our care and lowering its cost," he said. "This legislation will help reduce medical error rates and medical malpractice costs by opening the lines of communication between doctors and patients—encouraging honesty and accountability in the process and, most importantly, improving care."
The legislation has not been passed into law.
The Sorry Works! Coalition
A new coalition of patients, attorneys, doctors, and hospital administrators across the nation has an idea to keep liability costs and medical errors down at the same time.
The group is called the Sorry Works! Coalition.
The coalition's goals are to
- Educate all stakeholders in the medical liability debate
- Serve as an organizing force for the full-disclosure movement
- Advocate for legislative incentives, including pilot programs
The Sorry Works! Coalition is dedicated to promoting full disclosure and apologies for medical errors as a "middle-ground solution" in the medical liability crisis. If a standard of care was not met (as shown by a root cause analysis) in a bad outcome or adverse event, the providers (and their insurer) should apologize to the patient/family, admit fault, provide an explanation of what happened and how the hospital will ensure that the error is not repeated, and offer compensation.
The Coalition's protocol is based on the disclosure program developed at the VA Center in Lexington. It's a step beyond the commonly called "I'm sorry" laws that several states have passed in recent years that allow doctors to apologize without it being used against them in court as admitting liability and works like this:
- Hospitals and physicians review every adverse incident
- Hospital administrators and physicians sit down with patients and families to explain what happened
- The hospital and doctor apologize if a mistake was made and offer the patient or family fair compensation if the investigation finds that there was a medical error. They explain how the problem will be corrected
Organizers believe that the full disclosure and up-front settlements will have a big impact on the medical liability climate.
"More patients get justice; there are fewer lawsuits, so it lowers liability costs; it reduces errors in the long run; and the constitution isn't altered," said Doug Wojcieszak, an Edwardsville, Ill., resident who founded Sorry Works! "It's truly a middle-ground solution."
As we've said many times on these pages, full disclosure is always the best policy. Like any efficient marketplace, full information to the buyer results in the best allocation of resources. Few people would argue that allocating resources for medical litigation is a good use of resources. Maybe the "I'm Sorry" movement will result in fewer lawsuits and smaller settlements. Time will tell.