“I'm sorry.” Those two words—once seldom heard in patient/physician conversation—have been gaining popularity as state legislatures and malpractice insurers recognize that a simple apology can avert some of the consequences of adverse medical events. At least 29 states have enacted laws making doctors' expressions of sympathy inadmissible in court to varying degrees, and five states have made it mandatory for hospitals to inform patients of adverse outcomes.
Of course, legal permission to apologize has not provided physicians with the skills to handle these difficult conversations. Since 2001, psychologist Daniel O’Connell, PhD, has been traveling North America at the behest of health plans and insurers, teaching medical providers how to talk to patients about adverse outcomes.
“It's in our best interest as clinicians to work this out with [patients] in the most sensible way possible,” he recently told attendees at the Medical Group Management Association's annual meeting in Philadelphia. “We've been accused of being less than fully candid with patients, and we've paid a price for that in lawsuits.”
Disclosing what went wrong is key to effectively apologizing, as well as to avoiding an adverse outcome in court. “Many, many physicians and medical groups do not understand that if I purposely withhold information from you or create a misimpression about what happened in your care, I can be sued after the fact for fraudulent concealment,” said Dr. O’Connell.
Because fraudulent concealment suits are not subject to the statute of limitations or damage limits of malpractice claims, hiding information can actually make a bad situation much worse, he explained.
The emphasis on openness and disclosure may sound contrary to what many physicians believe they have been told by risk managers and insurers in the past, but Dr. O’Connell reminded the audience that he is paid by insurance companies to teach this new philosophy. “The appropriate role for your malpractice carrier is to help you help families recover from injuries when an investigation shows that care fell below the standard,” he said.
Apologies, however, may be necessary whether or not the standard of care was met. “There are two kinds of ‘I'm sorry's' in this world. One is ‘I'm sorry your dog got run over’ and one is ‘I'm sorry I ran your dog over,’” Dr. O’Connell said. The first type of apology is appropriate for adverse events that meet the standard of care, like rare but known complications of surgery or unforeseeable medication reactions. The second, which can be an admission of liability, he recommended for instances when a mistake was clearly made.
Type of apology aside, most of the strategies for talking to patients about the problem are similar in either case. After discovering an error or adverse event, the first step is to take a deep breath and notice what's going through your own head, Dr. O’Connell said.
“If it's ‘Oh my God, they're going to sue me,’ beware of that thought because that could distort your perception in the direction of self-protection. If it's ‘Oh my God, I can't believe I almost killed them,’ take a breath because it may be that you need an investigation to figure out if what you did actually caused this harm and if what you did fell below the standard.”
After the cause of the error or adverse event is determined, the next step is to gather the appropriate people to talk to the patient. If, for example, a hospital patient was given the wrong dose of a medication and the physician, pharmacist and nurse were all partially at fault, the physician should either bring the nurse and pharmacist in to see the patient and explain the event, or apologize and explain on their behalf.
Risk management personnel should also be involved, but as a part of a team, not as the sole decision-makers, Dr. O’Connell said. “You decide what should be said to your patient, based on your ethics and the facts of the situation, and then you call a lawyer and say, ‘Help me say this in the most constructive and legal way possible.’”
And once you've figured out what you want to say, don't come into the patient's room and give a lecture. Listen to the patient, empathize with his or her experience and offer to explain what went wrong. “If I offer to explain and wait for him to say ‘Please do,’ it doesn't feel so much like the pressured doctor defending himself,” said Dr. O’Connell.
Physicians should, however, be proactive rather than reactive about explaining their errors. “If the patient has to pull it out of you with three tough questions, you get almost no psychological credit for the disclosure,” said Dr. O’Connell. Instead, patients give themselves credit for getting the information.
Patients are also keen to ferret out the admission that a mistake was made, Dr. O’Connell noted. If the adverse event was the result of a mistake, it's better to say that up front. “We have research to show that if you don't use those words, the patients will drill on you to get them,” he said.
Last but certainly not least, patients should be offered remedies for their adverse outcome, whether an explanation of treatment options or an offer of compensation in those cases that fell below the standard of care.
“Especially in hospitals, that would include stuff that wouldn't even occur to you at first blush. We have put people up in hotel rooms. We have paid for people's meals for three days. There's a park bench in a Spokane hospital garden that is dedicated to the memory of an 85-year-old man” who died as the result of physician error, said Dr. O’Connell.
Obviously, a physician who has just discovered an error would not be prepared to immediately offer a patient or family an individualized compensation proposal. That's why Dr. O’Connell advocates meeting twice with patients—once informally when the problem is discovered, and later at a formal meeting that occurs after an investigation of the event has been completed. The meeting should include multiple representatives of the hospital, not just the involved physician, and should provide the patient and/or family with the conclusions of any investigation that has occurred. Patients should be permitted to bring their attorney, and Dr. O’Connell recommends encouraging them to hire a lawyer on an hourly instead of a contingent-fee basis, so that they will have less incentive to push for litigation.
These formal meetings are appropriate both in situations where the standard of care was not met and where it was, according to Dr. O’Connell. “You have to have the skill of working things through with patients even when your care is reasonable,” he said.
If a patient or family is not fully convinced by the conclusions of an internal investigation, the hospital might want to offer them a copy of the chart with an invitation to take it elsewhere for a second opinion, he said.
In many cases, that offer will be enough to satisfy patients and they may not pursue the issue further. Such open, honest encounters are usually best—both financially and psychologically—for everyone involved, including patients, insurers and physicians, said Dr. O’Connell.
“Clinicians like me and you are horribly affected by medical errors that hurt people,” he said. “To add to that concealment and deception is emotionally damaging to doctors and nurses.”
When do you have to disclose a mistake?
At the Medical Group Management Association's recent annual meeting in Philadelphia, psychologist Daniel O’Connell, PhD, described the four cases in which unanticipated events should be disclosed to a patient, according to the American Society for Healthcare Risk Management:
- If an event had a perceptible clinical effect. “If we putz around and we lose track of your INR, we're not allowed to just send a phlebotomist in there without explaining why you're getting more blood work,” Dr. O’Connell said.
- If an event necessitated a change in patient care. For example, if a patient was placed in intensive care because of an overdose of medication, both the error and its consequences need to be explained.
- If an event presents a known risk in the future. Providers should always err on the side of warning patients about any possible risk, said Dr. O’Connell.
- If a near-miss was evident to the patient or family member. If a pharmacist calls a doctor to correct a prescription in front of the patient, the patient is owed an explanation, Dr. O’Connell said. However, it's not necessary to disclose near-misses that will never come to the patient's attention, such as a hospital pharmacist correcting a medication order before the drug gets to an inpatient, he noted. “We don't train our staff to walk in saying, ‘To be honest with you I need to report that we damn near killed you this morning,’” he said.