The Power of an Apology: Patients Appreciate Open Communication

Andis 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.
"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 respect
The 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
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 everything
Sometimes, 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 it
Experts 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.
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?' "