Sorry, not sorry: Medicine’s apology dilemma evolves

National Report-To Victor Cotton, MD, JD, an attorney and former practicing physician, practicing medicine means never having to say you’re sorry.  

“In simple terms, a doctor who gives his or her best effort does not owe the patient an apology for anything,” he said.

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For decades, however, apologies have been on the minds of researchers and lawmakers, if not necessarily on the lips of physicians themselves.

First, a slew of new state laws attempted to make it easier for medical professionals to apologize without having to worry about making themselves vulnerable in malpractice lawsuits. The wave of legislation has waned. But now there’s a new trend: communication-and-resolution programs that encourage physicians and medical facilities to do much more than just say they’re sorry when mistakes happen.

Meanwhile, two new studies-including one presented at the 2016 AUA annual meeting-offer conflicting perspectives on whether the laws are working, at least in terms of reducing litigation.

All this makes for a complex apology landscape, one that continues to divide attorneys, doctors, and patient advocates. Are apology laws really “traps for the unwary physician,” as Dr. Cotton describes them? Should they be replaced by communication-and-resolution programs, seen by some as a kind of apology law-plus? Or perhaps the laws are serving a purpose by promoting openness, honesty, and accountability.

Whatever the case, “Few physicians are familiar with apology law and even fewer understand the significance,” said Patrick McKenna, MD, chief of the division of pediatric urology at American Family Children’s Hospital and professor of urology at the University of Wisconsin, Madison.

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Judging by Dr. McKenna’s new research supporting the value of apologies, what physicians don’t know could hurt them after they hurt patients.

Next - History lesson: No apologies here

History lesson: No apologies here

Apologies and medicine are not bosom buddies. Throughout much of history, physicians simply didn’t say they were sorry, says Thomas H. Gallagher, MD, professor and associate chair of the department of medicine and professor in the department of bioethics and humanities at the University of Washington in Seattle.

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“There was a sense that we can talk with our peers about things that have gone wrong, but it’s not good to air our dirty laundry outside of the profession,” he said. “Some of this was couched in terms of trying to promote trust. Sharing information about an error might diminish that trust.”

Self-protection played a role too. “The profession was embarrassed to be open about the aspects of care that weren’t going well,” Dr. Gallagher said.

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And then there’s the matter of money. Malpractice law has its roots in the middle of the 19th century, not the 20th, Dr. Gallagher says. So there’s long been a real threat that openness-“I made a mistake, I hurt you, and I’m sorry”-could have real consequences.

Next: Apology laws run the gamut

Apology laws run the gamut

In 1986, Massachusetts adopted the first law designed to encourage physicians to apologize without having to worry that their words would be used against them. A total of 38 states now have apology laws on the books.

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But the laws are anything but standard, meaning that your state’s apology law mileage may vary. Thirty-two states have so-called “partial” apology laws and six have “full” apology laws.

“Partial and full apology laws differ in the type of communication protected, the sentiments protected, the types of providers that are protected, to whom the protected communication may be made, and the context in which a communication will be protected,” Dr. McKenna explained.

The six states with full apology laws-Wisconsin, South Carolina, Georgia, Connecticut, Colorado, and Arizona-provide the most protection to physicians.

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Wisconsin’s 2014 apology law, for example, allows statements of “apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, or sympathy.” The statements, however, must be made “before the commencement of the civil action, administrative hearing, disciplinary proceeding, mediation, or arbitration.”

Next: What you can (and shouldn't) say

What you can (and shouldn’t) say

The Wisconsin law seems clear and easy to understand. But apology laws can be maddeningly complex and vague too.

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For example, Florida’s partial apology law says “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 in a civil action.”

Clear as mud, it seems. Do medical mishaps count as “accidents”? It’s not clear. If they do count, can a urologist, for example, apologize and go on to admit responsibility for missing obvious signs of cancer? No: The law says a statement of fault is admissible.

How well do apology laws work?

Researchers have been trying to understand the effects of apology laws, but their findings have been mixed.

In an October 2011 study published in the Journal of Risk and Uncertainty (2011; 43:141), researchers reported that apology laws seemed to reduce average malpractice payments and settlement time, especially in cases involving the worst harm.

However, a 2016 Vanderbilt University study that has been presented to several academic audiences found that, “In general, apology laws increase the probability of malpractice lawsuits... Overall, the evidence suggests that apology laws do not effectively limit medical malpractice liability risk.”

Now, a new study co-authored by a urologist, Dr. McKenna, offers a contrasting opinion. The study analyzed malpractice cases from 1991 to 2014. In states with apology laws, litigation length was 4.4±3.3 years before the laws were enacted (N=165,556) and 3.3±2.0 years afterwards (N=38,940) (p<.001). Litigation length was shorter (2.6±1.4 years, N=2,281) in states with full apology laws than in states with partial laws (3.3±2.0, N=36,659; p<.001).

Why might there be a connection? According to other research, patients and their relatives say “an explanation and apology would prevent them from litigating,” Dr. McKenna said. “Additionally, apologies decrease patients’ anger toward their doctor and increase patients’ trust, strengthening the doctor-patient relationship.”

Not so fast, says Dr. Cotton, the anti-apology attorney. Yes, he practices law in a state- Pennsylvania-that has a partial apology law. But he doesn’t think it’s worth anything.

Empathy, compassion, and caring are part of doctoring, he believes. However, he said, “The idea that a doctor who inadvertently injures a nerve during a complex, 6-hour surgery has committed a moral wrong that violates the trust of the doctor-patient relationship is insulting.”

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As for apologizing, he said, “It is very hard to find a real physician who has tried this approach. They value their licenses and careers.”

Next: Steps before you apologize

Steps before you apologize

Dr. McKennaWhat if a doctor does actually want to apologize and wants to do it right?

“Don’t apologize unless you know a mistake has been made,” Dr. McKenna advised. “Wait until the evidence clearly indicates a medical mistake before giving an apology.”

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But keep in mind that “a patient deserves to know what happened in the event of a medical error,” Dr. McKenna said. “At the least, the doctor should disclose the error, as this is ethical.”

Then check your state’s law.

“In states with partial apology laws, physicians should be cognizant that giving an apology without admitting fault is still better than giving no apology at all,” he said. “In states with full apology laws, it is important to know that patients want to understand what happened, why it happened, how the error could impact their health, and plans for preventing future errors. All of this information should be offered in the apology.”

You may also wish to look at relevant codes of ethics. An opinion from the American Medical Association says “physicians must offer professional and compassionate concern toward patients who have been harmed” and offer a “general explanation” regarding what happened and how future errors will be prevented.

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The ethics code of the AUA tells urologists to “render services to humanity with full respect for human dignity.”

Next - 'I'm sorry': How to apologize

‘I’m sorry’: How to apologize

Dr. Gallagher, the University of Washington professor who is a general internist, says he frequently apologizes to patients and uses the words “I’m sorry,” often repeatedly.

“I’ve found that patients really appreciate an open and honest conversation and, when the harm was caused by an error, a really frank apology,” he said.

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But be aware, he says, that just because patients appreciate an apology doesn’t mean they’re happy. Also understand that acknowledging an error could bring it to a patient’s attention and potentially prompt legal action.

So what do patients want? “In all cases, they want empathy and understanding. They want someone to care,” said Sarah Armstrong, RN, MSN, JD, a health care communication and conflict resolution consultant at the University of Washington.

Going beyond the apology

But expressions of condolence, sympathy, and responsibility aren’t enough. “The majority of them want to know that this error will never happen again to anyone else,” Armstrong said. But too often, she said, “patients are left to wonder how an error happened and whether it will happen again.”

Indeed, apologies focus on resolving a problem from the past, not fixing the future. That’s one reason why some health systems are embracing communication-and-resolution programs, which encourage medical professionals to do more than say they’re sorry. These programs promote apologies, explanations, and-in some cases-compensation.

In May 2016, the federal Agency for Healthcare Research and Quality introduced the CANDOR (Communication and Optimal Resolution) tool kit, which encourages hospitals to be open to patients about errors. The kit is based in part on policies at the University of Michigan Health System in Ann Arbor, which says it’s seen reductions in lawsuits, malpractice cases that reach court, and settlement payments.

Critics question whether these programs intend to divert patients with valid cases from suing. But others believe they not only prevent lawsuits but also lead to change because they emphasize preventing future errors.

“No liability reform holds as much promise for improving safety,” Armstrong said.

So which approach is best: No apologies, apologies, or apologies-plus?

Dr. Cotton points to words attributed variously to Hippocrates and tuberculosis pioneer Edward Livingston Trudeau, MD: “To cure sometimes, to relieve often, to comfort always.” Comfort, as always, will be the hardest of those three verbs to define.

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