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Should You Apologize for a Poor Outcome?

Christopher Ryan, Esq.
Giarmarco, Mullins & Horton, PC, Troy, MI

Danial Laird, MD, JD
Gage Law Firm, Las Vegas, NV

Medical errors happen. Healthcare providers are human and humans are not infallible. For many healthcare providers, making a mistake or even being involved in a case with an untoward outcome can be unnerving, frightening, or even devastating to their practice. In such a situation, many healthcare providers feel a natural and understandable urge to express sympathy, remorse, or regret to the patient or perhaps the patient’s family. This article will outline some considerations when deciding whether or not to engage in such conduct.

There is a clear distinction between a disclosure of an unexpected medical result and an apology. The American Medical Association’s Code of Ethics 8.121 states in part that: “Physicians must offer professional and compassionate concern toward patients who have been harmed, regardless of whether the harm was caused by a health care error. An expression of concern need not be an admission of responsibility. When patient harm has been caused by an error, physicians should offer a general explanation regarding the nature of the error and the measures being taken to prevent similar occurrences in the future. Such communication is fundamental to the trust that underlies the patient-physician relationship, and may help reduce the risk of liability.”

The focus of this article is on whether an apology should be offered as part of such a disclosure.

There are a number of reasons why a healthcare provider might choose (or choose not) to express sympathy in conjunction with a disclosure of an unexpected medical result. The most obvious reason is the potential impact on the physician’s liability. If statements of sympathy are perceived as statements of culpability, the patient may pursue litigation that he or she otherwise might not have considered. On the other hand, some argue that expressing sympathy shows compassion, which actually reduces claims.

Assuming for a moment that a claim is inevitable, an apology can have a large impact on future medical malpractice litigation. This is especially true of verbal apologies. Verbal statements are subject to the recollection of the physician and the patient, and almost invariably, those recollections are different. Apologies that are recalled after two or more years are not likely to be recalled the same way they were delivered. What may have been a seemingly innocent statement by a physician, “I am very sorry, but we have to do another procedure” may genuinely be remembered by the patient years later as a statement of culpability after a lawsuit has been filed. Many states have adopted legislation to encourage disclosures by preventing apologies from being used during litigation. For example, in Michigan, statements that express sympathy are inadmissible in a malpractice trial as evidence of liability. Importantly, however, statements of fault, negligence, or culpable conduct are not protected by the law.

Untoward outcomes can be complex and involve systems issues. In other words, medical errors are often multifactorial and can involve multiple parties. For example, consider the following scenario: An anesthesia provider is called upon to report emergently to a Code Blue in which the Code Team has had difficulty establishing an airway in a patient in full cardiac arrest. Several other health care providers have unsuccessfully attempted numerous times to intubate the trachea. The oropharynx is now edematous and hemorrhaging. The hospital recently cut its equipment budget and the only fiberoptic laryngoscopy equipment is being sterilized. In the heat of the moment, no one is able to locate a cricothyroidotomy kit that for some reason is missing from the Code Blue crash cart. The anesthesia provider makes every effort to secure an airway but as a result of a combination of factors, the patient dies of hypoxemia.

Should the anesthesia provider apologize to the decedent’s family? It is unlikely the anesthesia provider is aware of all the circumstances that led to the patient’s death. It is likely there is a complex explanation as to why the providers attempted numerous laryngoscopies before calling for help, why the hospital had no fiberoptic laryngoscopy equipment available, and why the crash cart was missing a cricothyroidotomy kit. An anesthesia provider offering an apology over her inability to secure an airway is almost certainly going to provide the family with an incomplete explanation of the factors that led to the outcome. The provider risks facing an argument that by providing an incomplete or inaccurate explanation, she was attempting to conceal the truth.

Perhaps rather than an apology, the anesthesia provider should simply express empathy to the family and truthfully state she does not know exactly what happened and why. In such a complex situation, the anesthesia provider may be better off reporting the incident to the risk management department and requesting that an internal investigation be conducted to determine the various causes and how they can be prevented going forward.

Assuming you have made the decision to apologize, it must be done with great care. If at all possible, you should contact your risk management department and have them involved in the process. There may be specific procedures in place that should be followed. Also, the risk management department may be able to document the discussion to assist, if necessary, during future litigation. If contacting risk management is not possible or feasible, then discussion with an attorney is advisable. An attorney (or your risk manager) will be in a better position to advise you about your state’s laws that may be implicated in these settings (such as whether your state has a law that protects physician apologies). Additionally, your risk management department will be able to activate internal peer review procedures to help reduce future errors.

This topic is the subject of an ongoing debate and there is no clear cut answer that can be applied in all settings. There are numerous considerations that need to be analyzed and each situation will be dependent upon the facts and circumstances involved. One piece of advice that most people can agree on is that it is important to involve your risk management department. Not only can this help reduce the likelihood that the practitioner will open himself or herself up to litigation, but it can be the first step in trying to prevent similar instances from happening in the future.


Christopher Ryan, Esq. is an attorney at Giarmarco, Mullins & Horton, PC in Troy, MI. Mr. Ryan’s practice is focused on defending healthcare providers faced with claims of medical malpractice. He also has experience assisting clients with a variety of general healthcare law needs. He can be reached at (248) 457-7154 or at cryan@gmhlaw.com.

 

Danial Laird, MD, JD is an associate with the Gage Law Firm in Las Vegas, NV. Mr. Laird is a litigator who focuses on representing patients and their families against hospitals, nursing homes, pharmaceutical corporations, insurance carriers, and the federal government. He has a particular interest in wrongful death and catastrophic injury due to systems issues and corporate negligence. He can be reached at dlaird@gagelawfirm.com.