Avoid a Bungled Apology: First, Get All the Facts
Do a Thorough Investigation
Editor's Note: This is the second of a two-part series on error disclosure to emergency department patients. This month, we give specific steps to take before apologizing to a patient. Last month, we covered whether liability risks are, in fact, decreased by this practice.
Are you about to apologize to your ED patient? Before you do so, be sure you have a thorough understanding of the facts. "There is no substitute to knowing the difference between a true medical error and simply an undesired outcome of reasonable care," according to Richard C. Boothman, JD, chief risk officer at the University of Michigan Health System (UMHS) in Ann Arbor. "We work hard to know the difference. Until we are reasonably sure we have gathered all relevant information and scrutinized it carefully, we do not advocate jumping to conclusions either way."
After UMHS adopted an "I'm sorry" policy in 2001, Boothman says that malpractice claims against his health system fell from 121 in 2001 to 61 in 2006. The average time to process a claim fell from 20 months to eight months, and costs per claim are half as much.
Boothman says, however, that, "We do not advocate insincere or uninformed apologies. When we apologize, we are reasonably sure our staff acted unreasonably in the provision of medical care. We are prepared to compensate for the impact of any injury that flowed from that mistake."
In Boothman's opinion, no amount of training would prepare an ED physician involved in an unanticipated outcome to handle this situation alone. "Even the most emotionally intelligent caregiver is too involved personally to do this without help," he says.
In part, this is because few incidents turn out to be what they initially appear. It takes a careful and thorough investigation to understand what happened and why.
"A badly handled disclosure is worse than no disclosure at all," says Boothman. "Our approach is to address the patient and family's medical needs first. We promise full disclosure, but only after we complete our investigation. This always entails listening to the patient and family, and promising that we will act in a principled, honest way."
If a true medical mistake was made, Boothman advocates disclosing it without excuses, but with an explanation. "It can actually be harmful to a patient to deliver an apology without providing context. The patient and family need to make sense of the mistake, so they understand that the caregiver never intended to hurt them," says Boothman. "We emphasize the difference between an excuse and an explanation."
If apologizing, be prepared to address the consequences of the mistake and what it will take to "make it right."
"If your health system is committed to a principled approach, the likelihood is very high that cases of true medical error lead to quick settlements and decreased risk of finding yourself uncomfortably in front of a jury," says Boothman.
According to Peter Viccellio, MD, FACEP, vice chairman of the department of emergency medicine at the State University of New York at Stony Brook, "It's good for all of us as physicians, to sit down in a chair for a few hours and think through how we're going to deal with terrible things when they happen. Overall, it's just a lot easier to be honest than not to be."
Take these steps before apologizing to your ED patient:
If your state has an "I'm sorry" law, have a full understanding of what it covers.
State statutes differ, but in many, the ED physician saying "I'm terribly sorry that the patient died," wouldn't be admissible. "But if I go further and say, 'I should have read the EKG correctly and if I had, I would have picked up a myocardial infarction or a serious dysthmia,' now I'm probably in a position where the plaintiff can repeat that," says Joseph P. McMenamin, MD, JD, FCLM, a partner at Richmond, VA-based McGuireWoods and a former practicing emergency physician.
"And if you say something like 'I've been negligent,'" you now are beyond the pale," says McMenamin. "That statement is coming into evidence, and you are now stuck with the job of trying to explain it to the jury."
In other settings, a physician is able to discuss the matter with administration or risk managers, and carefully consider what can and cannot be said before bringing in the family to speak to them. "But in an ER, how practical is that?" asks McMenamin. "It's not as though I'd say not to apologize. In the right setting, it may do a great deal of good, and not only from a lawyer's point of view. It may help with the healing process in some fashion. But if you're going to do it, educate yourself as to where the armor extends to and where it stops."
McMenamin says that while apologies have their place, "they have to be done carefully and cautiously. Any physician wanting to take advantage of his state statute should have a pretty good working knowledge for what protections it gives and doesn't give, before baring his soul."
McMenamin points to a 2005 case which interpreted Virginia's "I'm sorry" statute, enacted that year. The case involved the death of a two-year-old child of a Jewish rabbi brought to the ED with a rapid heart rate. During the course of treatment, the ED physician contacted an on-call pediatric cardiologist, and decided to treat the child with adenosine. After a second dose, the child suffered a cardiopulmonary arrest which led to brain damage.1
The consultant didn't come to the hospital personally to manage the child's condition, until after the incident. At that point, in the pediatric intensive care unit, he realized he knew the child's father. In a private room, the consultant said, "I'm sorry I wasn't there, I didn't hear your name, I didn't hear that it was the child of Rabbi Deitch."
The child's father eventually sued, and the pediatric group filed a motion in limine, asking the court to rule that the consultant's statements could not be admitted, relying on the "I'm sorry" statute. "The plaintiffs replied that these statements were actually admissions of liability and declarations against interest and an exception to the hearsay rule, and therefore should not be excluded. But the court rejected that argument," says McMenamin.
The court ruled that this was precisely the type of benevolence that the statute had in mind. "The doctor didn't say that he was sorry he wasn't there because a pediatric cardiologist should have been there. The apology was for a perceived interpersonal social failure, rather than an admission of professional negligence," says McMenamin.
Colorado's apology law is more specific than other states, as it covers "gestures or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence." "The word 'fault' is the key, as it gives protection to statements by the physician accepting fault for the unanticipated outcomes," says Barbara Fry, LLB, MHS, chief operating officer and director of the risk management program of Serio Physician Management in Littleton, CO. "This state apology law, however, does not have to be followed in federal cases, of which EMTALA would be one. So there may be instances when the apology is admissible."
Involve senior administrators for difficult cases.
"They're going to work the case, and do fact finding, not fact suppression," says Viccellio. "They will make sure the chart doesn't get lost or doctored, and will interview everyone involved in the case to get the best facts that they can. People's recollections a couple days later are much more valuable than two or three years down the road."
While risk managers are removed from the clinical care of patients, they're keenly aware of reporting requirements of entities such as The Joint Commission and the health department. "And the worst thing they could do to their institution is to hide a known case of medical error," says Viccellio. "They truly would be dragged through the mud in papers and get horrible citations."
Learn what your insurance company would expect of you, before you find yourself in an acute crisis.
Most require you to report an occurrence as soon as you recognize the risk of a claim. "The insurance company is contractually pledged to support its insureds," says Boothman. "My best recommendation would be that anyone insured be clear about what you can expect under these circumstances."
McMenamin says it's prudent to consult with your own attorney or your insurance company before making any sort of apology. "The thing to do is educate yourself about this in advance of need. You need to have a basic working knowledge of the law in this area," says McMenamin. "If you are not quite confident about that, you should avoid apologizing."
Fry says that a physician in one of their affiliated EDs who wants to make an apology to a patient would first call its insurer for guidance. "We believe that a timely apology can defuse a patient's anger and head off further litigation," she says.
Find out how an apology will impact your malpractice coverage.
If a patient is harmed in your ED, an insurance company may be content if you say "I'm really sorry that this happened," but may have a different point of view if you add the words, "And it's my fault."
"I can imagine an insurance company saying, 'You have now nullified your coverage.' Now you not only have this liability exposure, but you also don't have insurance," says McMenamin. "I don't have to agree. I may be able to convince a judge that I do in fact have coverage. A lot of times, the courts will bend over backwards to figure out ways that a company who thinks it's off the hook, is really on the hook. But you may not necessarily win. And even if you do, you are now fighting the insurance company, in addition to fighting the plaintiff."
Reference
1. Deitch vs. INOVA Healthcare Services. File number 223119, Fairfax Circuit Court, VA. 2005. Westlaw 2005 WL4876742.
This is the second of a two-part series on error disclosure to emergency department patients. This month, we give specific steps to take before apologizing to a patient.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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