Physician Apologies for Medical Errors

Patient safety advocates point to the Institute of Medicine's 1999 report, “To Err Is Human,” which found that medical errors contribute to the deaths of as many as 98,000 hospitalized Americans each year, as a benchmark for this new approach to conflict resolution. In the words of Dr. Paul Barach, an anesthesiologist and patient safety researcher at the University of Miami, health care professionals today are beginning to understand that “it's okay to tell the patient the whole story,” and such growth in the physician/patient relationship represents “a huge sea change as far as their relationships with patients” are concerned. Id.

Those who specialize in medical malpractice litigation, on either side of the bar, may well encounter cases in which a likely defendant/physician was not sued by the plaintiff, either because of a strong personal relationship between the patient and the physician, the physician's “bedside manner,” or a fixed opinion by the plaintiff that a system, rather than an individual, was at fault. To the extent that strong relationships between physicians and their patients have played such a role in traditional litigation, we may consider this newly emerging practice as a logical extension of the pre-existing relationship between doctors and those they treat.

Does It Really Help?

Dr. Michael Woods, author of “Healing Words: The Power of Apology in Medicine,” has drawn from his own experience as a practicing surgeon to demonstrate the impact of the traditional manner in which physicians handled a mistake. Dr. Woods describes how he was present to supervise a medical resident during a routine appendectomy when the resident accidentally punctured an artery, requiring a far more extensive surgery. The patient expressed dissatisfaction with the manner in which Dr. Woods handled the extended post-operative course, including one office visit during which Dr. Woods reportedly “propped his feet up on the desk and, in her opinion, acted as if he didn't care.” At the time, Dr. Woods wanted to apologize, but legal counsel recommended that he break off contact with the patient when she threatened to sue him. Today, as a consultant to physicians and the malpractice insurance industry, Dr. Woods believes that a patient's dissatisfaction with a physician's behavior often plays a more significant role than the underlying medical error itself when the patient decides to sue. It may therefore be suggested that medical errors often result in two specific types of harm – objective and subjective – both of which are relevant to a patient's decision to sue. The caring professional who addresses not only the outward evidence of a misadventure but the patient's injured emotions as well, may reduce the likelihood of future malpractice claims.

The University of Michigan Health System is now encouraging physicians to apologize for their mistakes as part of a broader effort to strengthen the honest and open exchange of communications between physician and patient. According to one study, this health system's annual attorneys' fees have dropped from $3 million to $1 million, and malpractice lawsuits and notices of intent to sue have fallen from 262 filed in 2001 to about 130 per year, since the program was instituted. Similarly, those who support the “Sorry Works” legislation in neighboring Illinois would encourage offering apologies and financial settlements early on, before litigation is filed, when medical errors are acknowledged.

Apologies, according to a leading physician/author, have the power to heal humiliations, free the mind from deep-seated guilt, remove the desire for vengeance and ultimately restore broken relationships. As such, an apology may be considered among the most profound of interpersonal communications. In “On Apology,” Dr. Aaron Lazare, Chancellor and Professor of Psychiatry at the University of Massachusetts Medical School, has engaged in an extensive analysis and historical review of the motivation for apologies and their relationship to forgiveness, among other topics. “On Apology,” Aaron Lazare (Oxford University Press 2004). A consistent theme of Dr. Lazare's work is that the expression of an apology, generally a simple but meaningful act, may well lead to forgiveness on the part of the offended party as a “transfer of power and respect between the two parties” takes place. In the context of the traditional physician-patient relationship, such a transfer of power can become a powerful tool toward ultimate conflict resolution.

Official Endorsement of the Idea With respect to the Institute of Medicine study, federal agencies, as well as the Joint Commission for the Accreditation of Healthcare Organizations (JCAHO), have adopted policies to address patient safety. JCAHO's new accreditation standard for hospitals, effective July 1, 2001, addressed patient safety and required that patients be fully informed “about the outcomes of care, including unanticipated outcomes.” The accompanying intent provision of the rule — R1.1.2.2 — indicates: “The responsible licensed independent practitioner or his or her designee [should] clearly explain the outcome of any treatments or procedures to the patient, and when appropriate the family, whenever those outcomes differ significantly from the anticipated outcomes.”

It is clear that JCAHO's goal in enacting this standard was to effect truthful and timely communication of all outcomes, including adverse events, to the patient and/or family. Clearly, the “licensed independent practitioner” will in most cases be the attending physician most actively involved in the patient's care. When obvious error has been made, such as surgery on the wrong body part, a straightforward acknowledgment of the error coupled with an apology may be very effective, not only in mitigating a hostile situation at the outset but also in facilitating resolution of a potential legal claim prior to the filing of a lawsuit.

Conclusion

It might be wise for those in the medical professions to focus attention on an alternate pathway for conflict resolution. We live in a society whose patient population is far better educated than at any other time in our history. Health care providers who are willing to treat their patients as partners in the healing process by candidly recognizing when an error has occurred and attempting to resolve such unanticipated outcomes, may well advance both their personal and professional goals by limiting the extent of future litigation.

The Associated Press has reported that medical students and physicians are now being taught that an open acknowledgment of regret for medical errors, even an apology, may help doctors avoid malpractice lawsuits. “Doctors Eye Apologies for Medical Mistakes,” http://abcnews.go.com/US/wireStory?id=235090. In Illinois, malpractice reform legislation includes a concept known as “Sorry Works,” recommending that an apology be offered when mistakes are made or untoward results occur. Within the overall context of medical malpractice risk management, a recent evolution in dispute resolution philosophy suggests that direct, forthright communications between physician and patient may reduce the risk of future litigation.

Saying 'Sorry' Might Be the Best Course

The traditional relationship between physician and patient has as its foundation a historic linkage between ethical behavior and medical practice. The Hippocratic Oath, still pledged in many of our nation's medical schools, defines physician character and patient care responsibilities, the most famous being “first, do no harm.” In ancient times, the Code of Hammurabi addressed the physician's dual responsibility to the patient and to society. In the modern world, bioethics as a specific field of study has emerged as a separate discipline, and ethical behavior remains fundamental to the practice of medicine. Viewed in this light, the movement toward more open communications between physician and patient is consistent with the highest ethical standards of the medical profession.

Patient safety advocates point to the Institute of Medicine's 1999 report, “To Err Is Human,” which found that medical errors contribute to the deaths of as many as 98,000 hospitalized Americans each year, as a benchmark for this new approach to conflict resolution. In the words of Dr. Paul Barach, an anesthesiologist and patient safety researcher at the University of Miami, health care professionals today are beginning to understand that “it's okay to tell the patient the whole story,” and such growth in the physician/patient relationship represents “a huge sea change as far as their relationships with patients” are concerned. Id.

Those who specialize in medical malpractice litigation, on either side of the bar, may well encounter cases in which a likely defendant/physician was not sued by the plaintiff, either because of a strong personal relationship between the patient and the physician, the physician's “bedside manner,” or a fixed opinion by the plaintiff that a system, rather than an individual, was at fault. To the extent that strong relationships between physicians and their patients have played such a role in traditional litigation, we may consider this newly emerging practice as a logical extension of the pre-existing relationship between doctors and those they treat.

Does It Really Help?

Dr. Michael Woods, author of “Healing Words: The Power of Apology in Medicine,” has drawn from his own experience as a practicing surgeon to demonstrate the impact of the traditional manner in which physicians handled a mistake. Dr. Woods describes how he was present to supervise a medical resident during a routine appendectomy when the resident accidentally punctured an artery, requiring a far more extensive surgery. The patient expressed dissatisfaction with the manner in which Dr. Woods handled the extended post-operative course, including one office visit during which Dr. Woods reportedly “propped his feet up on the desk and, in her opinion, acted as if he didn't care.” At the time, Dr. Woods wanted to apologize, but legal counsel recommended that he break off contact with the patient when she threatened to sue him. Today, as a consultant to physicians and the malpractice insurance industry, Dr. Woods believes that a patient's dissatisfaction with a physician's behavior often plays a more significant role than the underlying medical error itself when the patient decides to sue. It may therefore be suggested that medical errors often result in two specific types of harm – objective and subjective – both of which are relevant to a patient's decision to sue. The caring professional who addresses not only the outward evidence of a misadventure but the patient's injured emotions as well, may reduce the likelihood of future malpractice claims.

The University of Michigan Health System is now encouraging physicians to apologize for their mistakes as part of a broader effort to strengthen the honest and open exchange of communications between physician and patient. According to one study, this health system's annual attorneys' fees have dropped from $3 million to $1 million, and malpractice lawsuits and notices of intent to sue have fallen from 262 filed in 2001 to about 130 per year, since the program was instituted. Similarly, those who support the “Sorry Works” legislation in neighboring Illinois would encourage offering apologies and financial settlements early on, before litigation is filed, when medical errors are acknowledged.

Apologies, according to a leading physician/author, have the power to heal humiliations, free the mind from deep-seated guilt, remove the desire for vengeance and ultimately restore broken relationships. As such, an apology may be considered among the most profound of interpersonal communications. In “On Apology,” Dr. Aaron Lazare, Chancellor and Professor of Psychiatry at the University of Massachusetts Medical School, has engaged in an extensive analysis and historical review of the motivation for apologies and their relationship to forgiveness, among other topics. “On Apology,” Aaron Lazare (Oxford University Press 2004). A consistent theme of Dr. Lazare's work is that the expression of an apology, generally a simple but meaningful act, may well lead to forgiveness on the part of the offended party as a “transfer of power and respect between the two parties” takes place. In the context of the traditional physician-patient relationship, such a transfer of power can become a powerful tool toward ultimate conflict resolution.

Official Endorsement of the Idea With respect to the Institute of Medicine study, federal agencies, as well as the Joint Commission for the Accreditation of Healthcare Organizations (JCAHO), have adopted policies to address patient safety. JCAHO's new accreditation standard for hospitals, effective July 1, 2001, addressed patient safety and required that patients be fully informed “about the outcomes of care, including unanticipated outcomes.” The accompanying intent provision of the rule — R1.1.2.2 — indicates: “The responsible licensed independent practitioner or his or her designee [should] clearly explain the outcome of any treatments or procedures to the patient, and when appropriate the family, whenever those outcomes differ significantly from the anticipated outcomes.”

It is clear that JCAHO's goal in enacting this standard was to effect truthful and timely communication of all outcomes, including adverse events, to the patient and/or family. Clearly, the “licensed independent practitioner” will in most cases be the attending physician most actively involved in the patient's care. When obvious error has been made, such as surgery on the wrong body part, a straightforward acknowledgment of the error coupled with an apology may be very effective, not only in mitigating a hostile situation at the outset but also in facilitating resolution of a potential legal claim prior to the filing of a lawsuit.

Conclusion

It might be wise for those in the medical professions to focus attention on an alternate pathway for conflict resolution. We live in a society whose patient population is far better educated than at any other time in our history. Health care providers who are willing to treat their patients as partners in the healing process by candidly recognizing when an error has occurred and attempting to resolve such unanticipated outcomes, may well advance both their personal and professional goals by limiting the extent of future litigation.