The Power of an Apology: Patients Appreciate Open CommunicationAndis Robeznieks, Amednews.com (July 28, 2003)

While doctors and lawyers duked it out over tort reform and liability caps in state legislatures last spring, two states quietly passed bills that could significantly impact malpractice lawsuits by extending physicians' freedom of speech to include two words: "I'm sorry."The Colorado and Oregon legislatures passed laws allowing physicians to make statements of sympathy and condolence with the assurance that these statements would not be used against them later in court."The world is a crazy place," said Oregon Medical Assn. President Colin Cave, MD, a Lake Oswego-based otolaryngologist. "Who would have thought that a doctor would have to be protected by a law in order to express his or her compassion?"California, Massachusetts and Texas already have similar laws, but many doctors and hospitals are discovering that, even without legal protection, acknowledging and apologizing for errors and adverse outcomes has its own rewards, both ethical and financial. There also is optimism that disclosure will lead to better communication that might help prevent errors in the first place.When errors do occur, studies indicate that it's not necessarily the medical error itself that causes patients or their families to sue, but the response to it. A study in the Feb. 26 Journal of the American Medical Association reported that after an error occurs, patients want information about why it happened, how consequences will be mitigated and what's being done to prevent reoccurrence. They also want emotional support from doctors -- including an apology."Patients will keep looking until their questions are answered," said Ilene Corina, president of Persons United Limiting Substandards and Errors in Health Care."If all the doors are closed to them, they will go to lawyers."The typical posterror scenario, Corina said, is that the patient or family can't reach doctors and instead are circled by risk managers who won't give straight answers. "The classic line you hear is, 'We're looking into it,' " said Corina, whose 3-year-old son died 13 years ago after surgery to remove his tonsils and adenoids. "In my case, the doctor said he was sorry but never acknowledged that something went wrong."Corina said apologies for errors are still so rare that she has never heard a case of one backfiring, with a patient suing only after disclosure and apologies were made. Like many others involved in these cases, Corina points to the Veterans Affairs Medical Center in Lexington, Ky., as an example of how the process should work.A better way

Since 1987, the Lexington VA center, affiliated with the University of Kentucky College of Medicine, has operated under a policy of full disclosure. A study published in the Dec. 21, 1999, Annals of Internal Medicine reported that between 1990 and 1996 there were 88 medical malpractice claims against the facility, but the average payment was only $15,622.

Linda Cranfill, quality manager and 31-year employee at the Lexington facility, said those figures have remained basically unchanged into 2003, but the process is not as simple as having someone say, "I'm sorry, there was a mistake."

After a potential adverse event or error is reported, Cranfill said, the medical record is extensively reviewed, a timeline is established, and peer review is conducted. Then, after consulting with a clinical analyst, nurse executive and patient safety officer, the chief medical officer and hospital attorney decide whether there was an error or adverse event.

If there was, a meeting with the patient or patient's family is called to disclose what happened.

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"Disclosure is made by the same two individuals, who explain what happened and describe what corrective actions are being put in place to make sure it didn't happen again," she said. "The attorney would then explain the compensatory process and assist in filling out forms."

The process is complicated and can take anywhere from a few weeks to several months, and Cranfill said some families do get agitated along the way. In these cases, she said it's important to maintain contact with the patient or family.

"One thing we've learned is that, in the beginning, the clinicians are often harder on themselves" in assessing blame, Cranfill said. "But in the ultimate medical-legal analysis, it doesn't come out that way."

Although the policy has worked in the center's favor financially, she said there no way of knowing the strategy would pay off when it was started. "It honestly started with a very simple decision that we needed to do the right thing."

The seminal event that led to the policy was a quality assurance review that linked a patient's death to a medication error. "There was no way the patient's family would have ever known that that happened," she said. "But our ethical obligation was to tell the family the truth because we knew it. And that's how it started. It worked out pretty well for us, and gave us the courage to keep doing it."

A similar program was started by the Denver-based COPIC Insurance Co., a physician-run medical liability insurance carrier, and it has enjoyed tremendous initial success.

Under the company's 3Rs program, specialists help physicians with face-to-face encounters with patients and their families in which there is recognition of an unanticipated result from treatment, discussion on why it happened and any remedial steps that are being taken. After the disclosure, COPIC's program calls for payment of expenses not covered by the patient's insurance, up to $30,000.

Not all adverse outcomes will be covered, but COPIC Executive Vice President George Dikeou said that in the program's first 14 months, there have been 148 "encounters" with patients and only one lawsuit has gone forward. He acknowledges it's too early to tell if this success will continue.

Treating patients with respectThe three Rs in the program stand for "recognize, respond and resolve," but Denver internist Mark A. Levine, MD, thinks there should be a fourth added."It's also the 'right' thing to do," said Dr. Levine, a member of the AMA's Council on Ethical and Judicial Affairs and the Colorado Patient Safety Coalition. "The 3Rs program is a way to treat the patient with the respect that is due them. Simply acknowledging what happened is a major part of that."While statistics indicate there are financial incentives for acknowledging and apologizing for errors, Dr. Levine said there is a more compelling reason for doing so. "This is all about professionalism and what it means to be a physician."In fact, not all of the stories come down in favor of physicians or hospitals.In July 2001, when Philadelphia's St. Agnes Medical Center gave full disclosure after a lab error led to the deaths of three patients from Coumadin overdoses, the Pennsylvania Dept. of Health slapped them with a record $447,500 fine. Even after the hospital's president, Sister Marge

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Sullivan, personally visited the home of one of the victim's families to apologize, the hospital was sued by the victim's widow."I would suggest that, given the publicity that we got and the number of people that may have been impacted, given all that, the litigation has probably been a lot less than if [news of the error] had come out with someone blowing the whistle," Sullivan said. "I can't prove that, but it's kind of my gut feeling. We're also in Philadelphia, and this is a very litigious area."We've been able to manage the suits that came forward," she added. "They've clearly been reduced by our coming forward."Sullivan said the decision to provide full disclosure wasn't done for monetary concerns, but was instead a reflection of the Catholic, nonprofit medical center's core values of courage and integrity.

Timing is everythingSometimes, however, apologies and settlement offers can come too late. That's the case for Leonard Joseph, whose wife, Marlene, died during childbirth in July 1999, apparently due to complications from an epidural received at the Jack D. Weiler Hospital of the Albert Einstein College of Medicine Division, part of the Montefiore Medical Center in New York City."Only because our doctor-friends asked the right questions did they admit they caused my wife's death," said Joseph, who works in the finance department of a different hospital.Joseph said an apology would have gone a long way, and when a settlement offer was made, it was too late and he was too angry to accept it. "It would have been easier to forgive. But the first thing they did was treat me with disrespect, and lie and cover up."Joseph, a 40-year-old immigrant from the Caribbean island of Dominica and a father of three, said that despite therapy, he still can't come to terms with his loss. He has a lawsuit against the hospital and speaks out about medical errors at every forum available.Hospital spokesman Steven Osborne said he could not comment on the incident except to say that it did lead to corrective actions."We take quality of care rather seriously at Montefiore," he said. "We have carefully reviewed the circumstances surrounding the event and have instituted policies and procedures to prevent this type of occurrence from happening in the future."Dr. Levine is hopeful that new laws like the ones in Colorado and Oregon will change the current atmosphere, and that more institutions will adopt disclosure policies."If you wanted to design a system that would drive errors underground," he said, "you'd pick the kind of system we have now."Cranfill said that, although not perfect, the environment has changed mightily since she first came on the job."There were procedures that I would describe as being cloaked in secrecy and held very tightly to the vest by the organization and physicians," Cranfill said. Now, "it's really the polar opposite of the situation in the beginning of my career."

ADDITIONAL INFORMATION: What to say, how to say itExperts say it is both ethically correct and financially prudent to disclose and to apologize for medical errors and adverse outcomes. Fortunately, there are other experts giving advice on the best ways to do it.Sherry Kwater, director of quality and performance improvement at St. Francis Medical Center in Peoria, Ill., recommends that doctors rehearse what they plan to say, avoid jargon and steer clear of words like "mishap" and others that suggest blame.

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At the recent AMA Annual Meeting, James W. Pickert, PhD, professor of education at the Vanderbilt University School of Medicine in Nashville, Tenn., also recommended practicing the disclosure beforehand but warned against using a script.In describing the "balance beam approach to disclosure," Dr. Pickert said there are five basic strategies, with each carrying its own set of risks and benefits. These are:

No disclosure. Disclosure of just the "safe" facts. Limited disclosure of established facts with a promise to disclose more as they become

known. Full disclosure right away. Full disclosure with assigning of responsibility.

His general advice is to offer support and to focus on the patient and not on one's own reaction. "Don't start by saying how hard it is for you to do this."Dr. Pickert, who has worked with fellow Vanderbilt professor Gerald B. Hickson, MD, in studying the reasons why patients file lawsuits, said it's hard to learn why they don't. "Administrators discourage researchers from calling people up and asking, 'Why didn't you sue us?' "

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