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The Importance of Saying “I’m Sorry”

Ethical and professional guidelines have long emphasized that physicians have a responsibility to disclose medical errors. The AMA Code of Ethics states, in part, “It is a fundamental ethical requirement that a physician should at all times deal honestly and openly with patients”…Even if a patient “suffers significant medical complications that may have resulted from the physician’s mistake or judgment…the physician is ethically required to inform the patient of all the facts necessary to ensure understanding of what has occurred...Concern regarding legal liability following truthful disclosure should not affect the physician’s honesty with the patient.”

Despite this position, doctors were historically advised by their lawyers and insurers to break off communication with patients threatening a medical malpractice lawsuit and were especially warned not to apologize out of fear the admission will be used against them in court. To help encourage openness, over the past few years, Arizona as well Florida, North Carolina, Missouri, Illinois, Colorado and Oregon have passed bills under which a doctor's apology for a medical mistake or expression of sympathy is inadmissible in civil court.

Arizona’s legislation, the “I’m Sorry” law, says any “statements, affirmations, gestures or conduct expressing apology, responsibility, liability, sympathy, commiseration, condolence, compassion or a general sense of benevolence made by a physician, other clinician or their employee to a patient, their relative or the patient’s representative relating to the medical care provided is inadmissible in court as evidence of an admission of guilt.”

Despite ongoing research supporting the need for effective communication between physicians and patients after an adverse outcome, there is a continuing struggle with how much, what and when to disclose. Barriers to disclosure and open communication fall into two basic categories; psychological and legal, the latter only partially addressed through recent legislation. These barriers have acted as a deterrent to a culture of healthcare safety and patient-centered care. Moving from a culture of “blame” to a patient-centered philosophy of care where healthcare professionals feel free to express concerns about potential harm and have no fear of discussing error is both complex and difficult. However, patient care is and should be more about the medical and psychological needs of the patient, than the physician or organization. Effective disclosure requires that you put yourself in the patient’s or family’s shoes in order to better anticipate the need for information.

Unanticipated outcomes generally have one of two origins; those that occur without evidence of error and those that occur as a result of error. Although some errors harm patients, a large percentage of errors do not.

An unanticipated outcome without error may include a negative or unexpected result from a diagnostic test, treatment, or surgical intervention that may or may not be due to medical error. Biological variability is also a common factor in unanticipated outcomes – for example, a disease may present with an uncommon set of signs and symptoms, not giving sufficient hints of its presence to warrant a more comprehensive workup. When a diagnosis is finally made, both patient and family may wonder if there was an unnecessary delay that prolonged treatment or reduced the opportunity for cure.

The process of disclosure is far easier when it occurs in the context of a collaborative relationship from the onset of care. This includes establishing realistic expectations, a critical part of the informed consent process. During the course of care, the physician should demonstrate appropriate attentiveness and respond thoroughly when concerns are expressed. Patients who do not feel their concerns are heard will find it hard to forgive the physician later if there is an unanticipated adverse outcome.

Recent reports in the literature indicate full disclosure with apology, including acknowledgment of an undisputed error or mistake, may actually reduce liability costs. The Lexington, Kentucky VA Hospital has followed a policy of full disclosure of medical errors for more than 15 years. This facility ranks in the lowest quartile of VA centers for liability costs, which appears to have resulted not from a reduction in the frequency of malpractice claims— the absolute number of claims actually increased slightly—but rather from the willingness of injured persons and their families to negotiate fair settlements after complete and open disclosure.

In an article in the Wall Street Journal May 18, 2004, entitled “Doctor’s New Tool to Fight Lawsuits: Saying ‘I’m Sorry’,” author Rachel Zimmerman describes a nearly fatal outcome of a routine orthopedic surgery at Brigham and Women’s Hospital in Boston. The anesthesiologist inadvertently injected a narcotic in the wrong place resulting in cardiac arrest. The patient required open cardiac massage for successful resuscitation. When the hospital offered no explanation, the patient, a 41-year-old married female with three minor children, retained an attorney. The lawsuit was dropped, however, when the anesthesiologist, against the hospital’s advice, apologized for the terrible accident and was “deeply saddened” by the patient’s suffering.

In one telling study, patients and physicians were queried about patients’ needs following adverse outcomes. Results showed that 98% of patients wanted to be informed of even a minor error; 92% of patients wanted to be told about complications while only 60 % of physicians believed patients should be told about complications. In addition, 81% of patients wanted to be advised of possible future adverse outcomes related to complications, while only 33% of physicians believe that patients should be told about possible future problems related to the adverse outcome.

There is no question that it is challenging to find the right words and demeanor in order to talk with patients about disappointing aspects of their care. It is easy for the clinician to feel overwhelmed and defensive or to resort to blaming others. Certainly it is particularly difficult to explain a variability that exists within the accepted standard of care. There are a variety of skills and approaches, however, that can be learned and used to effectively discuss either potential or actual unanticipated treatment outcomes.

When an adverse event occurs, compassion and the expression of sincere sympathy to the patient and/ or family is the best response. Sustaining the relationship with the patient by continued emotional support can help a patient better accept an unexpected complication. Avoiding these patients may give the unwanted perception that you did something wrong or are abandoning them. Prompt communication in a non-defensive way can help dispel much of the patient’s anger, distrust and confusion.

Patients and families expect and deserve our sympathy, and even condolences, when they have suffered an injury associated with medical care, just as they would expect from any sensitive individual who hears their story. For example: “We are all sorry your family has been through such a difficult time,” rather than “I am sorry that I didn’t have my regular nurse working that day or this might have been prevented.”

The patient should be provided with an explanation of what happened and should be told the truth in lay terms, with the caveat that it is based on currently available information. There should be no attempt to conceal information since this will make a lawsuit more difficult to defend and could even extend the statute of limitations.

If the adverse outcome is a known complication or side effect that was discussed previously with the patient, assume the patient has only a vague understanding or recall of the information. Non-defensively review the same information in small, easily understood pieces, gently reminding the patient of the prior discussion.

It’s not a good idea to delegate to others the responsibility for meeting with the patient. This can give the impression that the physician is avoiding the issue or is indifferent to the patient’s concerns. Staying connected to the patient and family is probably the most effective way for the physician to show concern.

There are several steps to take when an error has led to injury. First, apologize and, where appropriate, take responsibility. Studies show that a physician’s failure to do so engenders bitter feelings that promote lawsuits. Reluctance to give a full accounting and to answer questions willingly has driven many families to attorneys who they believe will help them “get to the bottom of this.”

When the error occurs in a setting where a number of parties were involved, a team approach to disclosure may be indicated. Typically the primary or attending doctor should take the lead in the initial conversation, introducing others who may have been invited to answer questions. Determine who will be involved in the discussion. The type of error, the situation in which it occurred, and the degree of harm will influence who should be present in the initial and subsequent disclosure conversations. Consider who can best describe the injury, how it occurred and its likely impact on the patient, as well as a brief description of what is being done to decrease the chances of such an error happening again. The latter should be done without referring to any specifics of protected investigations such as peer review, root cause analysis or quality assurance activities.

Someone should be proactive in addressing the patient’s financial needs. Most patients and families will have questions about the financial impact of the adverse event. MICA has a policy provision called “discretionary medical payment” which may assist with this concern. It is advisable to check with your liability carrier before initiating a discussion regarding financial issues.

Because all communication between physicians and their patients is discoverable and admissible in a lawsuit, statements concerning the adverse outcome should be concise, plausible and concrete. It is important to use words or expressions that do not imply negligence. During discussions with patients and families physicians should include only the facts as they are known at the time of the discussion. Prematurely assigning blame to another healthcare professional or entity, product or piece of equipment, especially before all the facts are known, is unwise. It is also important that the physician not speculate on a cause that blames the patient for the adverse outcome. Some juries identify strongly with patients so this protective strategy often backfires.

In summary, when medical errors occur, effective patient-physician communication is critical. Patients are less likely to sue physicians who provide full and honest explanations of all aspects of the patient’s healthcare. Patients who pursue litigation are often motivated by a desire to obtain a full explanation of the adverse event.

For more on this important topic including a detailed bibliography, order a copy of: “The Challenge of Disclosing the Unanticipated Outcome,” 2004 summer offering of the AudioRx series produced by MICA Risk Management. In addition, a 2006 workshop to enhance the physician’s ability to properly disclose is planned.