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

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901 Mopac Expressway South Barton Oaks Plaza V, Suite 500 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.
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Medical errors, disclosure, and the role of apology: a tool for ... - TMLT

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