Most people would agree with the universal adage, “Honesty is the
best policy.” Unfortunately, some physicians look upon honesty in the form
of disclosure of errors with fear and dread. Even though physicians know they
should admit mistakes and apologize to their patients, they often will not. The
physician is often afraid of litigation, and sometimes doing more harm to the
patient. Other times, physicians are not educated about how to disclose and
apologize. The legal climate is changing, however, so that doctors are more
supported in the process of admitting errors to patients. In fact, according to
one interviewee for this article, physicians can now be sued for not
disclosing.
Experts discuss some of the barriers physicians face in disclosing
mistakes, the reasons they should admit errors and apologize and how to educate
physicians on what to say to patients and their families in the disclosure
process.
Why so difficult?
O&P Business News: Why does it seem to be
difficult for physicians, in general, to admit mistakes and apologize to their
patients?
Gerald Hickson, MD, associate dean of clinical affairs, Vanderbilt
University Medical School, Nashville: “I do not necessarily agree with
that general premise. I believe most medical professionals are able to say
‘I’m sorry’ and in fact, do so. However, having said that,
through our malpractice studies, we recognize that there are many circumstances
where some physicians fail to offer an appropriate apology. For a host of
reasons, some medical professionals have problems apologizing. Some believe
they are always right while others, through their training experiences, develop
an inability to admit a mistake. Some have personality types which make it
difficult for them to apologize. Unfortunately, such individuals can create the
impression that all medical professionals have difficulty saying ‘I’m
sorry.’”
Edward
Zurad, MD, clinical assistant professor in family medicine, Temple University
Medical School, Philadelphia; private practice, Tunkhannock, Pa.:
“Disclosing errors in any profession is difficult, but especially
challenging in primary care because physicians have little direction in their
medical school training and in residency on how to deal with medical errors and
even less so in terms of how to present medical error information in a way they
are comfortable with and that patients can understand. Also, physicians still
inherently believe that admission of an error may lead to the initiation of
litigation. In many cases, that is not an unsubstantiated threat. Each state
has its own policy on what is admissible in a court of law if an apology or
information is shared.”
Four barriers
Martin Hatlie, Esq., president, Partnership for Patient Safety, Chicago:
“It is fair to say that virtually all physicians know they are supposed to
disclose. The ethical exhortations that they have an obligation to disclose
material facts to their patients could not be clearer. And yet survey studies
show that a sizable percentage either do not do it at all, or do so only
partially. So what is the problem? There seem to be four barriers that get in
the way. They are:
- The education barrier. This is a ‘how’ barrier. Physicians
know they are supposed to do it, but they do not feel confident that they have
the skills. They do not feel they are experts in breaking bad news. - The fear to harm barrier. This one sounds old fashioned and
patriarchal now, but it is a fear of doing additional harm. When you have
already hurt a patient, the physician may think, ‘If I tell them the
outcome they have had is a result of an error, they are going to have even less
confidence in me and have one more thing to deal with when what we both really
need is for them to make a good recovery.’ It is the same kind of thinking
of 50 years ago when medical professionals believed they should not tell
patients they had cancer because they would not be able to handle it. It is
that old vestige that patients cannot handle the truth. - The trauma barrier. By trauma, I mean trauma for the physicians. Many
think that because of an error or participation in care that produced a poor
outcome, their world will come to an end; that they will be less respected by
their colleagues, less trusted by patients, sued, lose privileges or be
reported to the national practitioner data bank which keeps a permanent record
of the errors physicians make if there is a monetary settlement. A parade of
‘horribles’ run through their heads and the instinct is to duck and
avoid. - The cultural norms barrier. It is frequent for doctors to turn to one
another or turn to other parts of their culture such as their lawyer or risk
manager for answers. The norm still is that anything you say could be used
against you in a court of law. Trusted peers or advisors will often say,
“Don’t do that” or ‘We do not do that
here.’”
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May be fewer law suits
O&P Business News: Are there fewer lawsuits if
physicians apologize?
Hickson: “Anecdotally, I do know of many cases whereby
sitting with families, providing information, admitting mistakes and offering
an apology, disputes have been resolved without getting attorneys involved.
However, I am concerned that there are insufficient empirical-based studies, at
present, to provide assurances to skeptics that institutions are going to save
money by promoting an apology. I think you promote apologizing because it is
the right thing to do.”
Zurad: “That is the contention of some experts. There is an
organization called Sorry Works! which is a group of doctors, attorneys and
insurance executives who look at whether medical apologies really work and if
so, do they cause a reduction in malpractice events. The current data from them
suggests that perhaps apologizing does work. It does not necessarily reduce the
frequency of lawsuits — it may actually increase the frequency — but
there is a strong belief that the likelihood of an exorbitant award is lowered
dramatically. These medical lottery types of awards that we see are much less
frequent when physicians share information up front with patients about errors
that have been made that resulted in bad outcomes.”
Hatlie: “There is data that a sincere disclosure program
does reduce liability exposure in terms of both claims frequency and magnitude
of payout, but it is being generated by the pilot projects of a few liability
insurers who are still reluctant to publish results that they consider
proprietary in nature. My take is that a sincere apology can chase away a
lawsuit motivated primarily by anger. Those motivated primarily by economic
loss will still be made.”
When not to admit an error
O&P Business News: Would a physician ever not
want to admit a mistake?
Hickson: “When we identify a mistake has been made
that has resulted in an adverse outcome or has changed the medical care that
has to be delivered, those things need to be revealed.”
Zurad: “In the best of all possible worlds, all physicians
would want to be able to admit a mistake right away. That would be something we
would all want to be able to do if we knew on the back end of that admission we
were not creating a large trap for ourselves professionally. In my practice, I
can disclose because I have long-term relationships with my patients.
Specialists do not often have that luxury. I take care of four to five
generations of the same families. It is easy for me to do that, but in the age
of the mobile American, there is little trust in professionals in general. It
is much harder for physicians to be honest with patients. That, along with the
skepticism in modern medicine, prevents data sharing regarding this issue in
the majority of cases.”
Hatlie: “I mentioned earlier that one of the barriers is the
fear of further harming a patient. I can see a narrow exception where the
patient might be depressed to the point of suicide or if the patient is a child
who is too young to understand. In those situations, the physician should
disclose to family members. I don’t think it is ever ethically acceptable
to not disclose.”
Benefits of disclosure
O&P Business News: What are a few of the
positive benefits of disclosing or admitting a mistake?
Hickson: “It is morally and ethically the right thing to do.
It is a part of my commitment to professionalism and should help us all sleep
better at night. From a risk management standpoint, I believe it is the best
thing to do. Sometimes, people will assert that you are going to save money by
apologizing. That may or may not be true. However, sometimes it is okay to
promote a practice based on judgment alone. We believe that full disclosure and
apology after a thorough investigation reduces much of the inflammation that
sometimes makes settlements difficult and leads unnecessarily to the
courtroom.”
Hatlie: “There are benefits for both the physician and the
patient. It helps the physician heal as well. They often do not recognize that,
but by disclosing and apologizing I think a physician earns forgiveness in an
existential sense and that this is true even if the patient or family member
does not outwardly forgive. Doing the right thing helps them get on with their
lives.”
Zurad: “It begins the healing process for all parties —
the physician, the patient, and their loved ones.”
Downsides of apologizing
O&P Business News: What are some of the
negatives involved in disclosing or apologizing?
Hickson: “In our interviews with families who have filed
lawsuits, they often tell us how they feel that no one in the profession cared
about how an adverse event impacted them as fellow human beings. Sometimes
physicians do a wonderful job of providing detailed explanations of what
occurred, but in the process will never say, ‘I am sorry for what you have
experienced.’ Unfortunately, the word ‘sorry’ can mean two
different things in the English language: ‘Gosh, I have messed up’ or
‘I am sorry that you have experienced an adverse outcome that may be a
known complication of a disease.’ For this reason, and sometimes from
coaching by a few insurance companies, physicians have become reluctant to
apologize. An explanation without an expression of human concern can sometimes
promote even more family anger.”
Hatlie: “The biggest downside of apologizing is doing it
insincerely. I am uncomfortable with advice that one should apologize because
it will help avoid a lawsuit. That is the kind of ‘CYA’ apology that
I have seen backfire. So if you are going to do it, mean it.”
More training
O&P Business News:
Can physicians be trained to apologize and disclose?
Hickson: “We have done a poor job over the years training
people in the how-to. Medical schools, residencies, and continuing medical
education has up until the past 5 to 8 years had little focus on the
how-to’s. There are some definite ways to do it and definite ways not to
do it. In 1992 here at Vanderbilt, we started to require training because we
think this is an essential element of professionalism. Medical students are
required to spend 6 hours each using role players who teach them real
case-based scenarios.
The more difficult training is the issue of what to do at 6 o’clock
in the morning when it becomes apparent to you that you have a bad outcome and
you do not know why. This is where so much of the confusion occurs in an
apology. One might say, ‘I am sorry, patient, this problem has occurred.
At this moment I do not know why, but I am committed to finding out and as soon
as I get information, I am going to sit back in here and share with you
everything that we have learned.’ I am going to argue that no disclosure
at all is bad, but premature disclosure can also be bad. The more challenging
disclosure is one in which uncertainty is involved.”
Hatlie: “Some physicians will be better than others, but
everyone can improve and benefit by training. Just as individuals have a
professional duty to disclose, I think health care organizations have a duty to
support their community in doing this often traumatic work. Training is
important, but continuous support is crucial as well.”
Zurad: “Training is essential and available. I believe that
seasoned family physicians are expert in this regard and should be used by
academia to provide insight and techniques to physicians in training which will
prove invaluable throughout their careers.”— by Rachel Kelley
