Apologizing Still Works, But Ensure It Is Done Correctly
February 1, 2024 7 minutes read
EXECUTIVE SUMMARY
Expressing regret for an adverse event has become best practice. However, the apology must be carefully executed.
- Choose the right setting.
- Be objective when relating what happened.
- Some states offer legal protection for apologies.
Saying “I’m sorry” after an adverse event has become more accepted in recent years to express the clinician or administrator’s sincere regret at the unfortunate outcome, which was discouraged for many years for fear it would be seen as a legal admission of guilt. On the contrary, it has been shown to diffuse the emotions of a patient or family member and diminish the likelihood of litigation.
But exactly how those words of regret are spoken can be important.
The approach should be person-centered, with every effort to demonstrate both empathy for the client and their loved one’s experience as well as validation for their emotional and physical response, says Karen Bensinger, DNP, RN, MSN, CRNP-BC, CNE, assistant professor at Cedar Crest College School of Nursing in Allentown, PA.
These conversations should be conducted in a quiet and private space where all parties can be seated to indicate an equal power dynamic, Bensinger suggests. When one person is standing and the other is seated, it creates a literal and figurative message of authority and can cause perceived inferiority for the person who is seated.
Regardless of whether you were directly involved in the incident, it is important to be accountable as a representative of the institution, Bensinger says. You begin by apologizing for the outcome or event, whether an accident, a medical error, a fall, or anything else.
Bensinger suggests opening with, “I want to begin by saying how sorry I am that you had to experience this. You came here and trusted that you would be safe and cared for and did not anticipate such an outcome.”
Beginning with a focus on the personal effect offers validation of the pain and frustration the person or family may be experiencing. “While you want to relate on a personal level to the experience, being objective is key. You can only offer information that has been reported and documented if it is pertinent to the care provided,” Bensinger says. “Hearsay is not reliable and should not be part of the discussion. Accusations and blaming of people should not be welcome in the conversation.”
The response time frame and who should be present likely will vary depending on the incident, Bensinger says. If personal property was stolen or destroyed, or injury to the level of a sentinel event is warranted, risk management should be consulted. The time frame for reporting often is specific to the institution, but an initial incident report should be done within 24 hours, and all witness statements should be obtained in that time frame, if possible, to maintain as reliable recall as possible, Bensinger says.
“Only objective information should be reported. No opinions, no hearsay. Stick to answering who, what, where, when, and why — only if that is clear. If a client fell, you would document when, where the client was found, the position they were lying in, their level of consciousness, and any obvious sign of injury,” Bensinger explains. “Any statements by the client should be quoted.”
Part of this process is the attempt to determine a root cause for the problem to prevent it from happening again, Bensinger says. A preliminary plan should be determined with steps to correct it while a further examination or root cause analysis is performed.
“If a person feels that those at fault are truly concerned for their well-being, they are less likely to want to retaliate,” Bensinger says. “Building rapport and mutual respect is key for therapeutic and productive conversations in every interaction, but especially in cases where actual or potential harm has occurred.”
Disclosing the error of another provider requires a different process, Bensinger notes. In large institutions, there are corporate compliance officers and a method of reporting that can remain anonymous when a clinician observes cases of malpractice. This contact information often is found in the client folders and on the institution’s intranet. If this happens in a skilled nursing facility, and there is no hotline or anonymous reporting within the institution, an anonymous complaint can be made to the ombudsman or directly to the state’s office of health and human services, whereby an investigation can begin.
Some State Laws Protect Apologies
“Apology laws” protect in some states, says Henry Norwood, JD, an attorney with Kaufman Dolowich in San Francisco. An “apology law” is a law that makes apologetic statements by health professionals inadmissible in legal proceedings. Approximately 39 states have some form of apology law, he says. An attempt was made in 2005 to pass a federal apology law (the National Medical Error Disclosure and Compensation Act), but the bill was not passed. (More information is available at: https://www.congress.gov/bill/....)
Apology laws vary by state in the scope of their protection. Some states protect what can be referred to as “complete apologies;” that is, expressions of sympathy along with responsibility or fault, Norwood says. Laws protecting complete apologies prohibit the admission of apologies even if the health professional admits to wrongdoing.
Other states protect what can be referred to as “limited apologies.” These states protect expressions of sympathy, but not responsibility or fault, Norwood says. Therefore, the limited apology states would not prohibit the admission of apologies if the health professional admitted to wrongdoing.
“Even in states with complete apology laws, whether an expression falls under an apology law will ultimately be an arguable point in any legal proceeding. For this reason, risk managers should make efforts in advance to control how and under what circumstances medical apologies are made,” Norwood says.
Admissions of fault or responsibility should be limited or prohibited even in states with complete apology laws, Norwood notes. “Apologies should also be provided in writing or in the presence of a person uninvolved in the patient’s care to minimize the risk that the content of the apology will later be falsified or misconstrued,” he says.
Consider Legal Requirements
Do not rush to apologize without preparing first, cautions Alexandra P. Moylan, Esq., CIPP/US, partner with Nelson Mullins in Baltimore. Before starting a conversation, a healthcare provider should know what applicable legal and ethical requirements may apply in their jurisdiction and to their organization and specialty area.
For example, some states require disclosure to patients and/or their families of certain information following medical errors, Moylan explains. State laws also differ in terms of the protections afforded to apologies and disclosures of medical errors if litigation ensues following an adverse event. Additionally, hospitals and healthcare systems often have disclosure programs or policies that guide what happens after an adverse event.
“Generally, empathy, honesty, transparency, and timeliness are important for patient-provider conversations following an adverse event,” Moylan says. “These conversations can be difficult and emotional for both the patient and the clinician. Be sincere and direct. Use language that the patient and family can understand.”
It may not be possible to explain exactly what happened or why an adverse event happened initially, Moylan says. It is OK to acknowledge that and tell the patient and family that the hospital is investigating. Healthcare organizations are committed to patient safety and quality care, and informing the patient or their family that the event occurred is likely the first step in a process, she notes.
Assign a Lead Person
Consider assigning a lead person who will handle future communications for consistency, Moylan says. Provide contact information to the patient and family during the initial conversation. “Be sincere and direct, but avoid guessing, speculating, or making assumptions,” she says. “One purpose of the conversation is to re-establish trust with the patient and family. You do not want to risk providing incorrect information that needs to be corrected in the future.”
Generally, it is OK to tell the patient that the organization is looking into what happened and that you will be better able to explain what happened and why after an investigation has been completed. “You are establishing a line of communication with the patient or their family regarding what happened, what to expect, and how it is being addressed to the best of the communicator’s ability. Provide next steps and a plan for follow-up communications, including who the designated communicator will be,” Moylan says. “If applicable, tell the patient what the immediate care plan is and what to expect from a clinical perspective, similar to an informed consent discussion.”
Do Not Discuss Money
Along the same lines, Moylan says you should avoid making statements or representations about compensation without a clear understanding of how the organization handles compensation issues in the case of an adverse event. There are compliance and legal considerations that must be addressed that are dependent on the specific facts and circumstances.
The conversation should take place as soon as practical after the adverse event, Moylan advises. There may be steps to take, such as consulting with clinical leadership and risk management before the conversation occurs, but waiting too long detracts from the central goals of transparency, sincerity, empathy, and establishing trust.
Document the Conversation
Documentation of the conversation may depend on the organization and type of event, Moylan says. Often, an investigation is part of quality assurance, peer review, or root cause analysis, and certain privileges may apply to such investigations. There also might be reporting requirements imposed by federal or state regulations, or by accreditation bodies.
Clinicians should use the resources available to them, including consulting with risk management, clinical leadership, and/or legal counsel as appropriate, to prepare for the conversation.
“Generally, however, it is not productive to have risk management or legal counsel present unless a clinician from risk management is the disclosure lead or designated communicator,” Moylan says. “It is also generally not productive for a clinician to have a conversation with the patient’s legal counsel present unless that has been discussed with leadership and risk management or legal counsel.”
SOURCES
- Karen Bensinger, DNP, RN, MSN, CRNP-BC, CNE, Assistant Professor, Cedar Crest College School of Nursing, Allentown, PA. Phone: (610) 606-4666, ext. 3746. Email: [email protected].
- Alexandra P. Moylan, Esq., CIPP/US, Partner, Nelson Mullins, Baltimore. Phone: (443) 392-9407. Email: [email protected].
- Henry Norwood, JD, Kaufman Dolowich, San Francisco. Email: [email protected].
Saying “I’m sorry” after an adverse event has become more accepted in recent years to express the clinician or administrator’s sincere regret at the unfortunate outcome, which was discouraged for many years for fear it would be seen as a legal admission of guilt. On the contrary, it has been shown to diffuse the emotions of a patient or family member and diminish the likelihood of litigation. But exactly how those words of regret are spoken can be important.
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