‘I'm sorry' laws vary, require physicians' finesse
Not all “I'm sorry" laws offer the same level of protection for health care providers, notes a health care attorney who has studied the laws in several states. Risk managers should be familiar with their own state laws before they advise physicians about how much protection the legislation can offer.
Risk managers can rely on “I'm sorry" laws to assure physicians that they can express sympathy and regret without increasing their liability risk, says Linda Stimmel, JD, partner and cofounder of Stewart & Stimmel in Dallas and a medical malpractice litigator. Beyond that assurance, the individual state law can determine what else the physician might say.
Seventeen states have passed “I'm sorry" laws recently. (See the list below.) Most of these new laws are really just a clarification of regular evidence rules to publicize to health care providers that they need not be afraid to show compassion for patients in fear they may become plaintiffs, Stimmel says. She recently reviewed a number of “I'm sorry" laws in various states for a risk manager client, and she says they actually don't break any new legal ground.
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California and Colorado, however, have gone a step further and enacted laws that say the physician openly can state to the patient that he or she did something wrong and that statement still can't be used in court. Arizona and Georgia also say that statements of “fault and error" can't be used against the physician in court, a somewhat weaker statement but still achieving essentially the same thing.
“That's pretty extreme. Most states don't go that far," Stimmel says. “The majority of states talk about expressing sympathy and acts of benevolence, saying those can't be used against you in court."
Stimmel urges caution for all risk managers, no matter the wording of your state's law. She says a too-hasty admission of guilt by the doctor can inflame a situation and might be based on faulty information. She has seen cases in which the doctor, suffering pangs of guilt after a bad outcome, immediately offered explanations such as “I must have nicked the bowel." However, a subsequent investigation revealed that the surgeon actually did not err and the outcome was traced to something completely different.
“But by then, you've created an impression with the patient that you screwed up and it's your fault," Stimmel says. “That's hard to get out of their head even if you bring them facts to the contrary." You don't want “I'm sorry" laws to encourage physicians to start talking too much and too early, she adds.
People have come to realize over the years that perhaps silence isn't golden, says Joseph Feltes, JD, an attorney with Buckingham Doolittle, a law firm in Akron, OH.
“We're learning that the breakdown in communication is a large factor in whether a lawsuit is filed and, if it is, the reluctance to settle," he says. “Apologizing to the patient or the family can determine the future outcome, but you still want to give some thought to how you go about it."
Risk managers should provide physicians with some guidance on how to use the “I'm sorry" laws in their states, Feltes says. It's not enough to just tell them that the laws allow them to apologize because the laws vary, Feltes says. There still is a right and wrong way to express sympathy, he adds.
Feltes suggests that risk managers take the lead in promoting apologies that are consistent with their state law. There will be a learning curve, he says. It is not wise to simply state that as of a certain date you are adopting a policy of apologies and trust physicians to carry out that policy.
“I have the greatest respect for physicians, but if risk managers don't guide them, they may go out on some sort of independent frolic and say all sorts of things," he says. “They may have the right intentions, but it's a big mistake if you don't make a coordinated effort."
The program should teach physicians what they can and can't say. For instance, the laws are not a license to point fingers at other physicians or staff. Feltes suggests putting together an interdisciplinary team to help educate physicians and staff.
Ohio's new “I'm sorry" law says that “all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence" to be inadmissible. When considering how to interpret such phrasing in a law, Feltes says common sense will get you a long way. But he adds that it is helpful to keep these guidelines in mind:
1. Physicians should take the initiative in contacting the patient or family, sooner rather than later. The longer a physician waits, the more uncaring and evasive he or she may be perceived as being. Time allows feelings to fester and anger to mount and harden.
2. Physicians need to calm their emotions, have a good understanding of what happened, and not speculate or jump to conclusions before meeting with the patient or family.
3. Physicians should be factual, candid, sincere, and forthcoming in explaining what happened and answering questions.
4. It is not necessary for physicians to “fall on their sword" by accepting responsibility or blame when they did not make a mistake.
5. Apologizing or expressing condolences should not turn into finger-pointing at others.
6. Sometimes the only thing necessary and appropriate to say is something like: “I'm sorry about your loss. Your husband was a good man." Expressions of sympathy do not equate to admissions of wrongdoing.
7. If the physician has any questions, doubts, or concerns about meeting with a patient/family, or what to say or not say, encourage the physician to contact the risk manager or legal counsel.
Not all I'm sorry" laws offer the same level of protection for health care providers, notes a health care attorney who has studied the laws in several states. Risk managers should be familiar with their own state laws before they advise physicians about how much protection the legislation can offer.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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