Publication: Physician Executive
Publication Date: 01-MAR-06
Delivery: Immediate Online Access
Author: Butcher, Lola
Full Article:
Joanne Brindley just wants to hear "I'm sorry."

A disabled woman with many medical problems, the Boston-area resident prepared for a mastectomy in 2004 by notifying her medical team that she required a local anesthetic because of previous complications with full anesthesia.

Her surgeon agreed and the plan was documented in her medical chart. On the day of the surgery, however, the only thing that kept her from being put to sleep was Brindley's protest, which invoked a loud and ugly confrontation with an anesthesiologist who was surprised, confused and not on board with the plan.

"I'm strapped down, partially nude, scrubbed--and she's holding a clipboard over my face, saying 'you have to sign for general anesthesia,'" Brindley recalls.

Eventually another anesthesiologist administered a local anesthetic, the procedure was performed--and Brindley became a poster child for an organization that encourages physicians to apologize for medical errors.

"I just want her to say, 'I'm sorry' and understand how her words hurt so she doesn't do it again," Brindley said on the Sorry Works! Coalition Web site. "That's all I want. That's all most patients and families want."

That may be true, but some health care lawyers warn that "I'm sorry" should not trip lightly off a physician's tongue. While they agree that physician apologies may be appropriate in some circumstances, these lawyers are reluctant to embrace the apology movement that is sweeping the health care industry.

"From a straight legal sense, are apologies a smart thing to do? It depends on what you're apologizing for and what information is out there and what liability you're incurring," says Michael Levinson, MD, JD, a health care lawyer at Zuckerman Spaeder in Miami. "Common sense would dictate yes, apologize--but we live in a world full of liability and the ramifications of that can be very far-reaching."

Sorry = confession?

Those two little words--"I'm sorry"--can work wonders. Drain the coffee pot before your spouse gets one last cup? "I'm sorry" is the obvious first thing to say, almost guaranteed to build good will that will smooth over the problem.

But what does "I'm sorry" really mean? Is it:

* A confession that you personally emptied the coffee pot?

* An expression of regret that your spouse will not get the day's dose of caffeine?

* An acknowledgement that an unattributed screw-up has occurred?

"'Negligence,' 'wrong,' 'causation,' 'apologize,' and 'injury' are not simple concepts," says Tony DiLeo, a New Orleans attorney who practices health care law.

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For starters, there is the question of whether an apology is an admission of responsibility.

Trial lawyer David Florin, JD, a member of the health law section of the American Bar Association, the Defense Research Institute and the American Society of Law, Medicine and Ethics, thinks it is.

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"It's like jumping out of your car after an accident and saying 'I'm sorry. It's all my fault.' Try to defend that in court later," says Florin, a partner at Crowell & Moring, a Washington D.C.-based law firm. "It creates an admission that will be difficult to overcome. It's a confession of some sort."

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But another lawyer with equally impressive credentials in litigation sees it differently. Dennis Drasco, JD, recently served as chairman of the ABA's litigation section, representing 70,000 trial lawyers across the country.

"If a doctor apologizes and says 'I'm sorry,' I don't think that's an admission of guilt," says Drasco, a partner in Lum, Danzis, Drasco & Positan in Roseland, N.J.

Another kind of lawyer--health industry risk management specialist Cynthia Marcotte Stamer--sides with Florin.

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"The reason lawyers, doctors and Indian chiefs don't like somebody to say, 'I apologize, I'm sorry,' is that it is an admission," says Stamer, a partner in Glast, Phillips & Murray in Dallas. "And before you make an admission, you have to know and be precise about what it is you're admitting to, and what the consequences of that are."

In a growing number of states, so-called apology laws keep a doctor's apology from being used in litigation, but some fear that the very apology itself may provoke litigation.

Looking more closely at specific circumstances, lawyers encourage physicians to think carefully before they rush to apologize to their patients.

Remorse or responsibility?

Bad outcomes are not all related to medical errors, and physicians should be clear about whether an error has occurred.

"A very large percentage of medical malpractice claims that we see fall into those categories where you have ... a drug reaction or an unanticipated outcome that is nevertheless within the realm of known complications," says Bruce Cranner, JD, a partner in Frilot, Partridge, Kohnke & Clements in New Orleans.

For example, in certain surgeries, a nicked bowel or artery may be a known complication of the procedure. A surgeon must disclose to the patient what happened, but an apology is not appropriate, he says.

"You can say 'we deeply regret that this occurred' and 'we are concerned about your health and well-being,' but there is no culpability there," says Cranner, a former officer in the medical liability and health care law section of the Defense Research Institute.

One physician responding to the ACPE survey agrees.

"I feel that statements like 'I am sorry you are having to go through these extra procedures or treatments" is OK as long as it is clear the provider IS NOT apologizing," the physician wrote. "Usually there was not an outright error so much as an untoward outcome resulting from excellent intent."

When others are involved

A physician's apology may have a different effect than is intended or appropriate. In some circumstances, a physician might seem to accept sole responsibility when fault is shared with others.

"We should not use the term 'apology' because most of the time the cause of an error is multi-factorial and most often due to procedural/system problems," one physician responding to the ACPE survey says. "An apology is admission of individual guilt which may be unwarranted and lead to erroneous conclusions in the legal arena."

On the other hand, does a physician's apology, by implication, extend to other members of the medical team or the entire hospital?

"When a physician commits malpractice in a hospital--or a nurse does--the hospital has culpability potentially as well," Stamer says. "I've seen situations where physicians who have been too honest from another party's--sometimes the hospital's--perspective have actually been disciplined in peer review."

If not "I'm sorry," then what?

When a patient suffers an adverse outcome, the physician's priority should be clear.

"The very first thing you have to do is try to clean up the mess, whether you were the cause of it or not," Stamer, the risk management specialist, says.

She calls it "disaster support," making sure the patient feels that the physician is on the job.

"'We're going to do everything we can to stabilize the situation and help you get through this.' That's not an apology," she says. "Saying that in empathetic, humane terms is absolutely critical."

In her view, discussing possible causes of the bad situation is fraught with peril.

"If you try to explain, and then you try to qualify later, you're in trouble. If you say, 'I had no fault,' and you did, you're equally in trouble," she says. "So what you want to do is keep the focus on the care until you can figure (everything) out. Don't whip up the situation."

And if it is becomes clear that the physician committed an error, then it is time for "I'm sorry."

"If you find out there's a problem, you can say, "I apologize. We've looked into this and that, and it appears that I did not fully appreciate the significance of the data, or did not absorb it quickly enough," she says. "That's probably going to be after an investigation."

Lola Butcher writes about the business of health care for several trade publications. She can be reached by e-mail in Springfield, Mo., at lola@lolabutcher.com.

RELATED ARTICLE: How to make a bad situation worse

Health care lawyer David Florin no longer remembers what item--a sponge, perhaps--was left in the patient's body after surgery. But he has not forgotten the problems arising from the doctor's apology in a medical malpractice situation several years ago.

"The doctor came out and said, 'We screwed up, the nurses didn't count, and I'm sorry,' " says Florin, a partner at the Washington D.C. firm of Crowell & Moring. "Boy, did that come back to haunt."

Florin agrees that the case was malpractice. But the rift caused by the specific words in the doctor's disclosure made for what Florin calls a nightmare trial.

"The nurses were angry at the physician and so they tried to hang him out to dry, where it was clearly (a) nurse ... who was counting," Florin says. "They started testifying about how sloppy he was, what a horrible doctor he was, and I don't think any of that was true."

By the very fact that an adverse event occurred, investigations ensued and participants were required to report what they knew. What seems like a well-meaning apology to one person can seem like passing the blame to another.

"Everybody in the circle is responsible for watching out for everybody else, reporting on everybody else, and protecting themselves," says Cynthia Marcotte Stamer, a partner in Glast, Phillips & Murray in Dallas. "When one chooses to speak, and speaks too soon before everybody gets lined up ... everybody turns on him because he's upset the apple cart."

And that can set off a chain of events that will muddy the investigation as to what actually happened, she says.

"People are back filling on their nursing notes; they are trying to separate themselves from the seriousness of their participation," she says. "They're trying to point the finger anywhere but at themselves."

Changing stories

When a patient is struggling to understand an adverse outcome, an early apology can turn out to be an unfortunate apology.

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"You don't want to have a situation where you say one thing and then a week later you say something else and a week later you say something else," says Michael Levinson, MD, JD, a health care lawyer at Zuckerman Spaeder in Miami. "The more times you change a story for whatever reason, even if it is justified, there becomes a question of whether one party is being honest with the other."

Florin hears that. Several years ago, the Washington, D.C., lawyer represented a surgeon whose untimely apology--"We must have done something wrong. I'm sorry"--reverberated all the way to a jury verdict.

"If he had not said that, the chances are (the patient) probably never would have sued," says Florin.

The surgeon made the apology after a serious infection emerged near the patient's surgery site. Eventually an infectious disease specialist determined that the infection was not hospital-borne and, in fact, had been present before the surgery.

"Because the doctor had said 'I'm sorry and we screwed up,' it became very difficult to defend that when our position later became the infection had nothing to do with the treatment," Florin says.

During trial, the physician testified that he had apologized to the patient, but he later learned that he was not to blame. When the jurors were polled, they said they were sympathetic to the surgeon's situation.

"The jurors actually said, 'You know we hear you, but you bring in an infectious disease expert and you pay him--what else is he going to say?'" Florin recalls. "What (the jury) found the most convincing was the doctor saying it was probably the result of something he did. The jury heard that very human remark and sort of didn't pay any attention to the experts."

--Lola Butcher

RELATED ARTICLE: Some Physicians Discouraged from Making Apologies

Some physician executives who participated in ACPE's Patient Trust and Safety Survey expressed concern about the impact of apologies. Here are some of their insights:

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* "There are disconnects in my organization among the corporate level, the local hospitals and the medical staffs on whether or not it is appropriate to make an apology.... Most physicians are very uncomfortable about making an apology because they have been instructed by their malpractice carriers not to do this."

* "Our organization will apologize after a grievous outcome but does not openly encourage medical staff to do so."

* "Although I believe that apologies should be made, our lawyers and risk management personnel are very much against it and block us from doing it."

* "Having a good relationship with the patient and family is probably the most helpful factor, but in this litigious society, where everything that happens must be defined as somebody's 'fault,' I am uncertain how much an apology will counteract the 'victim' mentality many people have."

* "Too many physicians believe that offering an apology is the same as admitting liability. An extensive educational campaign is needed to correct this beginning in medical schools. This does not need to wait for tort reform."

* "While I agree apologies should be made, my apologizing to a patient was used against me in a malpractice suit. I did win the suit, but I am sure this influences the actions of many doctors."

* "The word 'apology' seems inappropriate unless the provider were to perceive negligence on his/her/its own part. To acknowledge that there has been an adverse event directly related to what was done or not done by the provider, genuine concern for the patient's ongoing welfare, and an effort to provide support and continuity of care is what is important. 'I'm sorry' is too easy, too dangerous, and meaningless unless associated with the above three components."




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