November / December 2005
Proceedings from the Quality Colloquim
What If We Just Said, “I’m Sorry”?
The heated debate surrounding the medical malpractice crisis has left many doctors, insurers, attorneys, and patient advocates looking for “middle ground” solutions. Not satisfied with the oversimplified solutions of “caps,” insurance reform, and stricter doctor discipline, people of good faith from all sides in the debate are looking for real solutions to the medical liability crisis.
The Sorry Works! Coalition (www.sorryworks.net), launched in February 2005, is comprised of doctors, insurers, lawyers, and patient advocates. It is not funded by any medical, insurance, or trial lawyer organizations. The board members and staff are volunteers, but the coalition is in the process of seeking funding from foundations, organizations, and individuals.
We believe that apologies for medical errors, and, when necessary, appropriate upfront compensation reduce patient and families’ anger, reducing medical malpractice lawsuits and associated defense expenses. This approach provides swift resolution without altering the Constitution (i.e., people maintain their right to sue but rarely do they exercise it). We believe that honesty is the key to reducing medical errors — especially repeat medical errors — and that Sorry Works! is a gateway to patient safety. Sorry Works! is a middle ground solution to the medical malpractice crisis, meeting the most important needs of all stakeholders: Fewer lawsuits for doctors, swift resolution with no constitutional infringements for patients and lawyers, and fewer medical errors.
But the best thing about apology and disclosure is that it is not a classic risk management approach — it preempts claims altogether by keeping physicians focused on doing the right thing in the face of a bad or unanticipated outcome. The data has clearly shown that physicians who have effective relationships with their patients have lower liability.
It is rare when two significant, yet distinct problems have a common cause. It is even more rare to be able to solve two problems with a single solution. Yet this is exactly the situation with medical malpractice claims and patient safety today: two significant and distinct problems in healthcare, each of which can be addressed by enhancing healthcare provider communication skills.
Communication failures are the root cause of the majority of malpractice claims and major patient safety issues, including errors resulting in patient death.
- Risk managers agree that as many as 80% of malpractice claims are attributed to failures in communication and/or a lack of interpersonal skills. Reams of data support this statement. Hickson et al. (2002) concluded that physicians with the highest risk for lawsuits were poor listeners, often failed to return phone calls, and were rude and disrespectful to patients. Even the JCAHO has noted, “Physicians are most often sued, not for bad care, but inept communication. (2005)”
- These same “inept communication practices” noted by JCAHO result in the majority of patient safety issues. In 1996, JCAHO identified communication as one of the top five issues contributing to the generation of medical errors. More recently, a 2003 study by JCAHO documented that communications breakdowns were the root cause of over 60% of 2,034 medical errors, of which 75% resulted in the patient’s death (COPIC, 2005). In other words, 915 people died as a result of a communication error.
Concluding that medical malpractice claims and compromised patient safety are due to the same problem — communication “issues” — is not only true, but blatantly obvious. Providing physicians and their organizations with tools and guidance to enhance communication skills, an organization will observe the tangible benefits of reduced malpractice liability and enhanced patient safety. One of these tools is a structured apology and disclosure program, supported by risk management or human resources.
The fact that communication is the prime driver of both of these problems is a beautiful thing for two reasons: 1) Improving communication skills is something that everyone can do and only requires one thing: willingness on the part of individuals and organizations. 2) It is a solution that can be started today. You don’t have to rely on legislation, lawyers, or anyone or anything else outside of your organization. Communication only requires willingness on the part of individuals and the organization.
Cultural and Legal Obstacles to Apology
A big part of Sorry Works! educational efforts is overcoming the supposed cultural and legal barriers to full-disclosure. There is much fear of full-disclosure within the medical, insurance, and legal communities, but these are emotional, knee-jerk responses that do not hold water. Here are some of the most common challenges:
Doctors will become sitting ducks with Sorry Works! They’ll get their pants sued off.
Response:The current system of “deny and defend” makes doctors sitting ducks. Doctors and hospital administrators are left to wonder if an unanticipated outcome will be followed by a process server bringing bad news. That’s no way to live. If a mistake occurs, doctors have to ask themselves one question: “Would it be better to handle this situation on my terms or have it fought out by high-priced attorneys in front of a jury of strangers?” Sorry Works! provides the protocol to constructively and positively handle errors and bad outcomes.
What if sorry doesn’t work? A doctor has just admitted guilt.
Response:A doctor apologizes for an error and offers compensation, but the compensation is rejected and a lawsuit is initiated. So, the doctor will go to court looking like the person who tried to do the right thing by apologizing and making a fair offer but was rebuffed. The doctor will be the sympathetic defendant and the plaintiff will look greedy, which is not the formula for success in the courtroom. Finally, many states have (or are planning to implement) so-called apology laws whereby an apology from a doctor is not admissible in court. The Sorry Works! Coalition supports such laws and legislation.
Lawyers simply file too many lawsuits in my hometown for Sorry Works! to be successful here.
Response:If a region or county is considered to be friendly to plaintiffs’ attorneys, that’s all the more reason for doctors to implement apology and disclosure. Doctors, hospital administrators, and insurers should do everything possible to make sure that patients and families don’t leave their offices angry in litigious regions. Sorry Works! provides the protocol and methods to alleviate anger and significantly diminish the chances of lawsuits being filed, especially in the most litigious areas. An overly aggressive trial attorney is powerless without an angry, yet sympathetic plaintiff.
But not all bad medical outcomes are the result of errors. Sometimes people just die or are injured despite the best efforts of a medical staff. We can’t be handing out checks every time someone dies or doesn’t heal completely.
Response:People die from medical errors, but not all deaths are caused by medical errors. Many times the standard of care is met, but people still die or do not completely heal. Doctors and hospitals certainly should not be expected to “hand out checks” under these circumstances. However, they still need to communicate with patients and families. This lack of communication and a perception of a cover up can lead to lawsuits even when the standard of care is met.
Hospitals that practice apology develop a reputation for honesty with local plaintiffs’ attorneys. If the hospital plans to contest a case (no apology or settlement), local attorneys learn that such cases are probably without merit and not worth pursuing. We call this effect “The Honesty Dividend.”
The policy of apology and disclosure was first developed in a VA hospital. It will never work in a private hospital.
Response:Kaiser Hospitals and Catholic Healthcare West show this to be untrue. Furthermore, as more and more hospitals become captive insurers, apology and disclosure will become easier to implement. Insurance companies are also starting to seriously study apology.
Apology and disclosure increases settlements, which means more doctors get reported to the disciplinary board.
Response:Not necessarily. According to page E-8 of the NPDB Guidebook (HHS, 2001), “a payment made as a result of a suit or claim solely against an entity that does not identify an individual practitioner is not reportable.” The guidebook also says, “medical malpractice payments are limited to exchanges of money and must be the result of a written complaint or claim demanding monetary payment for damages.” This suggests if disclosure is rigorous, forthright, and speedy, then a written claim/complaint may be avoided and, thus, physicians’ names not reported.
The greatest hurdles of all are medical culture and physician behavior. John Banja, bioethics professor notes in Medical Errors and Medical Narcissism(Jones and Bartlett, 2005),
Expressions of professional narcissism, hyperdefensiveness, and blame shifting are coping mechanisms that help healthcare professionals manage the dissonance between their perfectionist aspirations and the reality of their imperfect selves and environments. Consider, though, how the psychological pain deriving from error realization can be compounded by the professional’s feeling obligated to disclose the error and apologize for it. Apologizing for errors requires that the professional give up the pretensions, beliefs, and posturing that accompany the conviction that he or she must be perfect…disclosure and apology following a serious error might be psychologically impossible.
Cultural change will be difficult, but the benefits of apology and disclosure certainly merit the effort.
Michael S. Woods (firstname.lastname@example.org) is a practicing surgeon in Oak Park, Illinois, and is the founder and president of Doctors in Touch, an organization that provides leadership and communications training to physicians who desire to achieve greater personal and professional satisfaction, better patient and staff relationships, a more successful practice, and reduced liability. He is also the author of Healing Words: The Power of Apology in Medicine, The DEPO Principle: Applying Personal Leadership Principles to Healthcare, and co-author with Geri Ann Galanti, PhD, of Cultural Sensitivity: A Guidebook for Physicians & Healthcare Professionals. He served as a resource for a segment on apology in healthcare on NPR’s This American Life and is a member of the Board of Directors of the Sorry Works! Coalition.
COPIC Insurance Company. (2005, July) Improving patient safety by reducing communication breakdowns. Copiscope. Accessed July 28, 2005, at http://callcopic.com/publications/copiscope/cs_126_jul_2005.pdf
Hickson, G. B., Federspiel, C. F., Pichert, J. W., Miller, C. S., Gauld-Jaeger, J., & Bost, P. (2005). Patient complaints and malpractice risk. Journal of the American Medical Association287, 2951 — 2957.
Joint Commission on Accreditation of Healthcare Organizations (JCAHO). (2005). Health care at the crossroads. Accessed September 28, 2005, at www.jcaho.org/news+room/press+kits/tort+reform/medical_liability.pdf
U. S. Department of Health and Human Services (HHS). (2001, September). National Practiitoner Data Bank Guidebook. Accessed October 17, 2005, at www.npdb-hipdb.com/pubs/gb/NPDB_Guidebook.pdf