Medical errors, disclosure, and the role of apology: a tool for ... - TMLT

Medical Errors, Disclosure
and the Role of Apology:
A Tool for Physicians
Empathy
Apology
Concern
Compassion

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Austin, TX 78746-5942
PO Box 160140
Austin, TX 78716-0140
800-580-8658
512-425-5800
Fax: 512-425-5996
The only health care liability claim trust created and endorsed by Texas Medical Association
Written by George F. (Rick) Evans, Jr.
Evans & Rowe
San Antonio, Texas
All articles and any forms, checklists, guidelines and materials are for generalized
information only, and should not be reviewed or referred to as primary legal
sources nor construed as establishing medical standards of care for the purposes
of litigation, including expert testimony. They are intended as resources to
be selectively used and always adapted – with the advice of the organization’s
attorney – to meet state, local, individual organizations and department needs
or requirements. They are distributed with the understanding that neither
Texas Medical Liability Trust nor Texas Medical Insurance Company is engaged in
rendering legal services.

Preface
In recent years, health care providers have become cautious about offering
expressions of empathy or sympathy to patients who have suffered adverse
outcomes. These outcomes may be the result of known complications, clear
errors, or other circumstances. The health care providers’ caution in this area of
communication is the result of the increasing number of lawsuits filed against them
by their patients.
Physicians understandably have a difficult time determining appropriate
communication techniques to convey concern for the patient without
inadvertently implying their own fault or guilt. It is not unusual for a physician’s
compassionate and empathetic actions to be misunderstood and later described to
a jury as an apology for his error.
Unquestionably, there are situations in which clear errors have been committed.
Although rare, those events should certainly be followed with a sincere apology
and appropriate assistance to the patient. In situations where the physician is not
at fault for the undesired outcome, or when responsibility is difficult to determine
prior to an investigation, it is still important for physicians to have the skills
necessary to express empathy and concern without suggesting to the patient that
they bear legal responsibility.
Recent studies have suggested that failing to apologize for clear errors may
prompt more claims than previously suspected. Research suggests that apology
plays an important role in professional relationships. If done properly, an apology
may not even be an issue in a subsequently filed lawsuit. Additionally, it is just
common sense that demonstrating empathy and concern for patients during their
most difficult times is the right thing to do. If lawsuits are subsequently filed in
such situations, physicians will be seen in a much more favorable light if they have
attempted to show appropriate concern and interest in their patients’ well being.
This pamphlet discusses the role of apology related to various situations in which
physicians may be involved. This is a general discussion of the subject that may
or may not fit the unique circumstances of any given incident. For that reason it
should not be considered or acted upon as specific legal advice. However, it is a
tool to be considered in addressing those situations in which a patient may have
been harmed or inconvenienced. You are encouraged to contact your insurer’s
risk management department for specific advice related to a particular incident. If
you feel a claim may be forthcoming, contact your insurer.
The author recognizes there are as many female doctors and patients as there
are males. The use of “he” includes both masculine and feminine genders. It is not
meant to offend the reader but rather to avoid a cumbersome writing style. Also,
the term “patient” includes the patient’s family. In some circumstances, a family or
family member may be the only person with whom to communicate, as in cases of
patient death, incompetence or minority.

When do you Apologize
Since childhood, most of us have been taught that when you do something
wrong, you apologize. We certainly expect an apology from those whose fault
causes us to suffer a loss because it is considered the right thing to do. Webster’s
International Dictionary defines apology as “an admission of error or discourtesy
accompanied by an expression of regret,” and further states that it usually carries
an “…implied admission of guilt or fault.” Accordingly, even if a doctor does
not believe that he is guilty of an error, apologizing for the outcome may be
misconstrued.
Hopefully this discussion will assist physicians in distinguishing between situations
requiring empathy, compassion, and concern from those infrequent situations in
which a true apology is warranted. Information is also provided to assist in the
process of effectively communicating with patients in both situations.
The use of the term “true apology” in this pamphlet means admitting that an error
occurred and expressing regret. Apology, in this situation, implies an admission of
guilt or fault.
Why is this Important
What purpose is served by expressing your remorse to a patient over a bad
outcome or untoward incident
Although this brochure is not intended to outline the moral obligations inherent
to your profession, there certainly is an ethical component to this issue. At the
end of the day, you need to know you’ve done the right thing. Your conscience
may not give you peace of mind if you fail to heed the inner voice that wants
you to express your feelings of concern. When an apology is truly warranted,
accepting and expressing responsibility for your mistakes is the first step to
forgiving yourself and is the most likely way to maintain a good relationship with
your patient.
Demonstrating true sadness to your patient for his pain will help him and will
strengthen the bond between physician and patient. It is important for patients
to feel that doctors care about them. Patients who have good relationships with
their physicians will more likely forgive them in the event of an adverse outcome.
Additionally, studies show that claims may be avoided by developing a good
relationship with patients.

Juries have forgiven physicians when they believed the physicians tried their
hardest, cared about their patients, and were honest when explaining the events.
For example, in a trial where the jury returned a verdict in favor of the physician,
one juror reported that he believed the doctor may have made a mistake but also
felt the physician had done his best for the patient. On the other hand, juries tend
to be harsh with physicians who appear to be uncaring and uncompassionate.
When something potentially bad has happened to a patient and he knows it, he
wants answers. You certainly would if the roles were reversed. Any seasoned
plaintiff’s attorney will tell you that evasive or defensive responses by a physician
are primary factors in “morphing” patients into plaintiffs. By the same token,
those same attorneys can tell you stories in which the patient wanted to sue other
doctors but didn’t want his attorney to sue the one doctor he felt was forthright,
honest and compassionate about the incident. Although a sincere apology or
expression of concern may not avoid a lawsuit, the failure to do so when indicated
can certainly trigger one.
When is a True Apology Warranted
True apologies are certainly warranted when clear medical errors have occurred.
For example, if a surgeon removes the wrong kidney in a patient, leaving
the diseased kidney in place, the surgeon should promptly and appropriately
communicate the error and apologize. Fortunately, these situations are very rare.
There are other circumstances in which the surgeon may feel responsible
for the outcome. However, such an outcome could have occurred even if the
physician met the standard of care. For example, a patient with multiple back
surgeries could undergo spinal surgery performed at the wrong level because of
a distorted anatomy. Sometimes patients’ medical conditions are so complex that
the actual causes of the injuries are unknown until much later, if ever. In those
situations, true apology is not warranted. However, discussion about the event,
expressions of empathy and concern by the physician are very important. In other
situations, an error may have occurred, but it may be unrelated to a particular
adverse outcome. For example, a patient may have received the wrong dose of a
medication. However, it may not be the direct cause of the injury. It is important
for the patient to receive appropriate explanations regarding the injury. The
physician should be involved in discussions to determine the cause and outline
measures to resolve any problems. Likewise, the physician should express empathy
and compassion regarding the situation.

How to Communicate with Patients after
Adverse Outcomes
This is perhaps the very crux of this pamphlet. The objective is always to help
the patient understand the situation and to express empathy and compassion. An
apology should be given when appropriate. Following are some tips on how to
accomplish this.
Plan: This is not a part of your everyday routine. The situation alone causes
1 significant stress. If possible, it is important to take some quiet time to think
about what you will say before you meet with the patient. Plan what you would
like to say to the patient. Write down the main points you want to discuss. Role
reversal may help by trying to put yourself in the shoes of the patient or the
family. Be sensitive to their emotions. What would you want to hear and know
if you were in their situation
Prepare: Memorize the first few sentences of your opening remarks so
2 you can get by those first few moments of initial jitteriness during what is
an awkward moment for everyone. While you don’t want your comments to
come across as rehearsed or stiff, neither do you want to avoid losing your
train of thought early because of the emotions involved. If you already know
what you want to say and have rehearsed it, you are more likely to be able
to express your words in a natural and sincere way. This will convey your true
concern for your patient. Your comments should be relatively brief, yet impart
the important information.
Be prepared to explain to patients why certain things involving the situation
are unknown. Also inform the patient that steps are being taken to find out
what happened. When appropriate it is also important to explain in layman’s
terms that there are inherent risks in performing procedures and surgeries.
(i.e. referring back to informed consent discussion where risks, benefits, and
alternatives were explained).
Location/Setting: If possible, the meeting should occur in a quiet location to
3 avoid interruptions. Although it may be more comfortable to distance yourself
from the patient with a desk between you, you will appear more sincere
without any physical barriers. If you are uncomfortable sitting immediately next
to the patient, you may ask the patient to sit at a table with you. If the meeting
is at the bedside, be sure to instruct the nursing staff that you will need some
privacy. Choose a time when visitors, hospital staff, or others are unlikely to
enter the room.

Recordings: You should not record your discussion. Open recordings inhibit
4 free discussion between participants and create an unnecessary sense of
legalities. It introduces an element of artificiality into the discussion and will
impede your ability to present yourself sincerely. Be alert for surreptitious
recordings. Meetings should be in person rather than by telephone. Contrary
to common belief, secret phone recordings can be made legally without the
telltale “beep” or pre-conversation disclosure that your conversation may
be recorded. There is no foolproof way to tell if someone is recording you.
Be alert for suspicious-looking objects, such as something in a pocket or a
woman’s purse placed on the table or desk rather than the floor. Be cautious if
you are asked to repeat an answer to which you clearly and loudly responded,
or if you are directly asked if you were “at fault” or “negligent.” This may be
a clue that you are being recorded. Always conduct your conversation as if
anyone may ultimately hear the content.
It is always wise to be cautious when reporting information that you would
not want to be used as evidence if a claim were to be later filed against you.
Attendees: This is not a public meeting. It is a meeting between you and the
5 patient. If the patient is able, ask if he would like to invite his spouse or adult
children to attend. Those persons often play a significant role in making future
decisions. In some situations multiple family members may wish to be present.
In these situations, it will be necessary for you to use your best judgment.
When multiple family members are present, it may be beneficial to ask them to
designate a specific person as the spokesperson or contact person. This will be
the person with whom you will communicate should further conversations be
necessary.
If the patient is not competent, the meeting should be with the person(s) or
family members responsible for the patient’s affairs (i.e. spouse, adult child
or other caretaker. If possible, review the patient’s chart for designation of
contact person, prior to any discussions with family members.
Dress and Presentation: Appearance is important and impacts your
6 presentation. If you appear disheveled and unkempt, the patient may perceive
that you are unprofessional and uncaring. Here are some suggestions:
1. Dress professionally. Scrubs or business attire is appropriate. Avoid bright
colors.
2. Do not wear showy jewelry. Wedding rings/bands and conservative
watches are appropriate.
3. Sit with the patient. Don’t stand. If you are at the bedside, pull up a chair
rather than stand. Don’t slouch. Don’t cross your legs or arms. Lean
forward when listening.

4. Pay attention and keep appropriate eye contact without staring.
5. Interact with your patient in a manner consistent with your prior relationship.
Depending on the situation, some physicians may be comfortable placing
a hand on the patient’s arm as a gesture of caring or reassurance. Other
patients may prefer to have their personal space respected.
6. Never yawn.
7. Never look at your watch or room clock.
8. Make sure your phone calls are held. If possible, cell phones and pagers should
be turned off. Consider leaving your pager or cell phone with your nurse,
instructing her to take messages and to interrupt only if the call is urgent.
It is preferable that you are not on-call. However, if that is not possible,
explain the situation to the patient. Most patients will understand that you
have a patient with an urgent need.
Emotion: Heartfelt sincerity is extremely important in communicating with
7 patients in these situations. The tone of your voice, your word choice and good
eye contact will help convey your sincere feelings and emotions. Make sure that
you really mean what you say, or you may appear nervous, uncomfortable, or
dishonest. Showing your human side can help strengthen the bond between you
and the patient.
Compensation: If the patient has truly incurred a demonstrable loss or
8 injury due to wrongdoing, he may expect compensation. When some degree
of significant harm or loss has occurred for which compensation is appropriate,
contact your insurer. However, it should not delay your meeting with the
patient. Obviously, taking care of the patient’s immediate health needs is
essential.
Closing: It may be difficult to determine an appropriate length of time for
9 the meeting. It shouldn’t drag on forever and you don’t want to leave the
impression that you are in a hurry. Don’t rush things but don’t prolong the
meeting by making unnecessarily lengthy or repetitive statements. Don’t feel
compelled to fill an uncomfortable silence. The patient needs closure, so let the
patient talk.
When you sense the discussion is coming to a close, ask the patient if he has
anything further he would like to discuss. Advise him that further discussions
will occur as other information develops or as he has questions. You can
conclude the meeting by thanking the patient for meeting with you and
encouraging ongoing communication.
Assure the patient that you are always available.

Timing of True Apologies and other
Communications Following Adverse
Outcomes
There may be situations when the family’s needs are urgent (i.e. patient death).
As common sense suggests, apologies made tardily may not be well accepted.
However, a precipitous apology before all the facts are known may be premature
and based on erroneous assumptions. Additionally, some patients may require
more time before they are emotionally ready to engage in these discussions.
Because each situation is different, there is no perfect answer regarding when these
conversations should occur. The following are some guidelines to help you decide.
• Sooner is usually better. Don’t delay without a good reason. Don’t search for
reasons to avoid a potentially uncomfortable situation.
• True apologies should not be given if any significant uncertainty remains regarding
your culpability or role in the situation. You don’t want to accept blame for
something you may not have actually done or caused. If you apologize, even
though you were not negligent, the patient may assume you are guilty.
• The discussion should be deferred if the patient is emotionally labile and obviously
not ready to listen. Profound grief, confusion, anger and other emotions can
render the discussion meaningless.
• If an attorney has been consulted to assist you in the matter, follow his advice.
Should you contact your insurer first Again, there is no perfect answer to what
obviously is an important question. Perhaps the best answer is that the more
serious the potential harm, the greater the need to first visit with your insurer.
Simple mistakes that cause inconvenience, minor discomfort or embarrassment
to the patient can easily be handled on your own. Events that produced more
significant injuries or economic loss to a patient clearly warrant a call to your insurer.

Conclusions
The chill of litigation and the fear of the potential consequences occasionally drives
a wedge between physicians and their patients when situations involve less than
ideal outcomes. Returning to the basics of maintaining a good physician-patient
relationship while providing careful and attentive medical care can have a positive
effect on claims frequency. When adverse outcomes occur, timely, empathetic,
and sincere discussions with the patients can be both educational and reassuring.
Research indicates that lawsuits have been filed because patients felt their
physicians were uncaring, inattentive, failed to take time to explain what happened,
or failed to offer appropriate assistance for their future well being.
Apology, when indicated, is not a panacea. However, proper use of apology can
actually enhance the physician’s relationship with the patient and improve the
outcome for both. Hopefully the techniques discussed here will assist you in
achieving the best possible outcomes when an adverse event has occurred.

Resources
Healthgrades. Healthgrades quality study: patient safety in American hospitals.
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2006.
American Medical Association. The AMA is making strides in safety. Am Med
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Statement of Lucian Leape, MD before the U.S. Senate Subcommittee on Labor,
Health and Human Services, and Education January 25, 2000. Available at: www.
apa.org/ppo/issues/sleape.html. Accessed October 6, 2005.
Wu, Albert W., et al., “To Tell the Truth: Ethical and Practical Issues in
Disclosing Medical Mistakes to Patients”, Journal of General Internal Medicine,
12 (12) December 1997, p. 770-5.
Wu, Albert W., “Handling Hospital Errors: Is disclosure the Best Defense”
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Hickson, G.B., et al., “Liability In Suing for Malpractice”, Chicago: University of
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Hickson, G.B., et al., “Factors that prompted families to file medical malpractice
claims following perinatal injuries”. JAMA, 267:1359-1363, 1992.
Kiger, P. J., “The Art of Apology”, Workforce Management, October 2004, pp.
57-62. Available at: www.workforce.com/section/11/feature/23/85/59/.
Texas Civil Practice & Remedies Code, Section 18.061, Subchapter A.
Documentary Evidence. Available at: www.capitol.state.tx.us/statutes/docs/CP/
content/htm/cp.002.00.000018.00.htm. Accessed March 27, 2006.
“Crafting an Effective Apology: What Clinicians Need to Know”, Joint
Commission Resources, Joint Commission on Accreditation of Health
Care Organizations (JCAHO). Available at: www.jcrinc.com/printview.
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Rev 02/08