In recent years, there has been a growing sense that offering an apology when a patient has a poor outcome is not only the “right” thing to do but may even help avoid a malpractice lawsuit.
Posted in Patient Interactions on Thursday, September 01, 2016
Discovering a patient has been injured during treatment is a terrible, personal experience. Having to actually tell a patient or family member about the unanticipated outcome is an even more unpleasant experience.
Many doctors also feel an apology may be perceived by a patient as nothing more than a hollow, self-serving attempt to avoid blame and litigation.
In today’s world, however, many patients and their families expect an apology—or at least an explanation—after an injury or unanticipated event. Most states have recognized this reasonable human tendency and precluded the patient from later using it against the doctor in a malpractice suit. Some states have enacted laws to encourage doctors to disclose to their patients when treatment errors have occurred. Other states even mandate this disclosure.
Thirty-six states have enacted laws that exclude expressions of sympathy from legal allegations when the patient experiences alleged harm resulting from treatment. Six states have mandated notification of adverse events to patients. Every state is different. It is important that every doctor and his or her lawyer understand the details and the breadth of the applicable law.
Patient Relationships Are Critical
While it is possible that a patient will blame the doctor as a result of hearing an apology, defense attorney Kevin Hulslander, managing partner at Smith Sovik Kendrick & Sugnet, P.C., a New York law firm, believes doctors who show a human side to their personality and are concerned about the results of their treatment are more likely to avoid lawsuits. Hulslander says, “The type of relationship that has developed with the patient is key. Patients are less likely to sue doctors they like. Doctors who are hard and insensitive get sued.”
Consequently, open communications should be the foundation of the doctor/patient relationship from day one. Let your patients know that you will be upfront with them about their healthcare, and they will be your active partner in treatment decisions. “Patients are less likely to sue doctors who are good human beings in addition to being a good doctor,” adds Hulslander.
Think it Through
As with any risk management strategy, whether to apologize should be approached thoughtfully and on a case-by-case basis. Doctors should choose their words carefully, expressing regret for the occurrence of the event rather than any individual actions. An apology can be mistaken for an admission of liability if not well thought out. “It is best to express sympathy for their complications without admitting negligence or responsibility,” Hulslander says.
No matter how you choose to handle the situation, documentation surrounding these circumstances, the patient's injury or condition, and the discussion with the patient and/or family should not be placed in the patient's record. Instead, the doctor should start a separate personal file. Even if a lawsuit does develop, having said "I'm sorry" is not necessarily a bad thing—it can reflect a caring, conscientious doctor. "I try to turn it into a positive in front of a jury if the statement is admitted into evidence,” says Hulslander. Thankfully, he says, many states don’t allow it to even become an issue at trial.
So the moral is: Do not be afraid to apologize to your patients; it may prevent a future lawsuit.