Home  A New Kind of Bedside Manner: The Rise of Apology Policies
A new kind of bedside manner: The rise
of apology policies
By Amy Johnson Conner
Introduction
Some 20 years ago at
Kentucky’s VA Medical Center in Lexington, doctors began doing
something revolutionary. When something went wrong, they told patients
about it and said they were sorry. The result was striking. They saw far
fewer adversarial lawyers. Mistakes weren’t being covered up and
instead they were getting closure. Patients and caregivers began working
together to figure out what caused the problem and how it should be
fixed so it didn’t happen to anyone else.
After 20 years, the hard numbers and soft reactions are in from Kentucky
and a growing number of other facilities – including some in
Massachusetts. They say disclosing errors and apologizing to patients
and families is one sure fire way to reduce litigation, lower costs and
ensure staff members feel supported if they make what until now might
have been a career-ending mistake. Most importantly, experienced
facilities say, it’s the right thing to do. “If we really
get down to it, it’s the kind of behavior we learned in
kindergarten. Just behave in a proper way, treat other people the way
you’d have them treat you,” said Dr. Steve Kraman, the
former chief of staff at the Lexington VA hospital who started that
facility’s disclosure program. Kraman is now a professor at the
University of Kentucky.
The reality is that this has been
the very quiet, private, informal approach in many physicians’
practices for their entire careers. “It takes a certain amount of
maturity, self confidence and personal insight in knowing what
you’re about as a physician and not allowing some kind of claims
department to tell you how to behave with your patients,” said
Richard C. Boothman, chief risk officer for the University of Michigan
Health System and a pioneer of the apology and disclosure policy.
“I really don’t claim anything we’re doing is
genius.” Perhaps it’s not “genius,” but it
is official policy in Michigan for the first time, and so successful
that it has started a nationwide movement.
Last fall all VA hospitals received a directive that they were to adopt
this approach, said Doug Wojcieszak, of the Sorry Works! coalition. As
well, the Joint Commission re-quires that “patients and, when
appropriate, their families are informed about the oucomes of care,
treatment, and services that have been provided, including unanticipated
outcomes.”These policies are working. Facilities and physician
groups taking the disclose-and-apologize route report all manner of
benefits. Some fit into a spreadsheet. Some don’t.
Back to top
Tangible benefits
Kraman noted that in a comparison
of claims costs among 35 other VA teaching hospitals, they could not
prove theirs were less, but they were certainly no more, he said.
“Our payments per case were on the order of $16,000 on
average,” he said. Although the range was wide – with some
very small payments and some larger – none approached the $1
million mark. During Kraman’s tenure, only 15 suits were filed and
the hospital landed in court only three times. “There was just
nothing to go to court for,” he said. Two of those three suits
ended in a verdict for the plaintiff, he said. Since he left three years
ago the hospital has been in court only once. The University of Michigan
system certainly has saved money with this approach. “Our claims
dropped from 262 in August of 2001 when I got here and now we’re
below 100. It’s dropped every year since,” Boothman
said.
Intangible benefits
When disclosure and apology
policies are deemed successful based on their bottom-line results, it
breaks the collective heart of this movement’s founders. For them,
it cheapens the apology part. It is not merely some strategy to reduce
claims, Boothman said. What makes these policies most successful, the
founders say, are the intangible benefits. First and foremost, the
patients have a wholly different experience. If they’ve been
harmed, they are not pushed out of the facility or kept in the dark.
Nothing’s hidden from them, Kraman said. “They’re
treated like human beings,” he continued. “They’re
told what happened, what’s being done to mitigate the damage,
what’s being done to prevent it from happening to other
people.”
Another equally important benefit is the positive differences staff
members experience in dealing with adverse outcomes. “I believe
that the vast majority of physicians really want, on a personal level,
to be open and honest. Over the years, insurance people and lawyers have
told them not to. A whole generation of doctors has been conditioned to
believe they could really screw things up with the wrong kind of
comment,” Boothman said. Rather than having it covered up and
being forced to wonder for the rest of their lives whether someone will
find out, the staff now gets closure, Kraman said.
Dana-Farber Cancer Institute has
had a disclosure policy since 2001. Since then, Maureen Connor, vice
president for quality improvement and risk management, notices that
clinicians appreciate having a clear set of guidelines, in writing,
about how to disclose errors, including that they would receive support
from the institution and that support was available for patients and
families, too. Both Michigan and the Lexington VA learned that when they
began to address these issues out in the open, they were then able to
dig deeper and address the root causes of the adverse events. Kraman
said that because Lexington VA staff was already addressing what caused
the adverse outcome – so it wouldn’t happen again –
caregivers there didn’t have to worry about what a lawyer might
find if he walked in with a subpoena for records. It’s the idea
that it wouldn’t happen to anyone again that patients most
appreciate. Many injured patients have an overwhelming self-imposed
obligation to ensure that what happened to them or their loved one
doesn’t happen to anyone else. And it’s something that keeps
them from turning to the legal system.
The Michigan system, like many others, carefully builds that into its
discussions with families. Since October, multispecialty medical group
Fallon Clinic has had a few opportunities to talk to patients about
adverse out-comes nothing that was the fault of any physicians, said
Charleen Feeney, associate administrator of corporate compliance and
risk management at Fallon Clinic, based in Worcester. They’ve been
rewarding experiences, she said, because patients and families have
walked away knowing the medical facts of the situation and understanding
why things happened the way they did. “What it really boils down
to is … the humanity of a situation. It’s really just caring
about the patients and wanting to do the right thing,” Feeney
said.
Back to top
Another intangible benefit is the goodwill and positive PR that results
from these policies. Word of mouth is powerful and can run both ways.
Families can just as easily bad-mouth a facility that tosses them out in
the street when they inquire about why a procedure didn’t go as
planned, or they can tell their friends how honest and open the facility
was. That reputation extends to the plaintiffs’ bar, too.
“There’s not a plaintiffs’ lawyer who does not believe
that early resolution is better,” Boothman said. “Instead of
treating plaintiffs’ lawyers as lepers or pariahs, we’re
opening a dialogue with them,” by trying to get to the cause of
the problem and compensate when it is owed. Now Boothman gets e-mails
directly from plaintiffs’ lawyers, asking him to look into
situations involving potential clients. “Our credibility in the
plaintiffs’ ranks clearly contributes to the drop in
claims,” he said.
Deny and
Defend
The long-standing risk management
culture in medicine has been denying any possible error, cutting off
communication with the family, limiting the flow of information to the
family and hoping for the best (they’ll go away) but preparing for
the worst (they’ll come back with a lawyer), Wojcieszak explained.
“You slam the door, you push them out,”
Kraman recalled from his early days
as a physician, even as soon as a patient’s mere inquiry about
whether a medical error could have been made. “At that point,
whether it’s true or not, they’re shown the door.”
Boothman thinks medicine has underestimated the costs of that approach.
When hospital officials are so busy denying they made a mistake, they
can’t fix the thing that resulted in the problem in the first
place, he said. And, there’s nothing that drives patients to
become plaintiffs more than being stonewalled. People get angry when
doctors, whom they trusted implicitly, won’t give them the answers
they need about what went wrong with their care. Not surprisingly,
that’s the same sort of behavior that incenses juries, medical
malpractice attorneys say. “I think that juries in Massachusetts
tend to be very sympathetic to medical providers. They realize that
doctors and nurses are faced with difficult decisions with no easy
answers. They also realize that it is very easy for people to play
Monday morning quarterback and criticize these practitioners with
perfect 20/20 hindsight,” said A. Bernard Guekguezian of Adler,
Cohen, Harvey, Wakeman & Guekguezian in Boston.
But when a physician is arrogant, hospital officials have covered up a
mistake or juries don’t get the feeling that the physician cares
about the patient, they will give the plaintiff the benefit of the doubt
every step of the way. Many potential plaintiffs who come through
Elizabeth N. Mulvey’s office at Crowe & Mulvey in Boston are
ambivalent about filing suit. They’re just looking for answers but
no one will tell them what happened. They don’t get answers from
the doctors and they don’t know where else to turn but a law firm,
she said. However, when they get that explanation, even if it’s
that no one was at fault, they’re fine with that and walk away
satisfied without ever going to court, she added. That sort of
denouement can change the attitude of the parties during a trial as
well. Guekguezian recalled a recent case during which his client
approached the decedent’s mother while the jury deliberated,
offered his sympathy and told her that he thinks of her son, who died
during a routine surgical procedure, every day.“It made my client
feel much better,” Guekguezian recalled. “As well, even
though the jury returned a verdict in favor of the MD, the
decedent’s mother informed me that what the physician said to her
meant very much to her.” MMLR
Questions or comments about the
article should be directed to the editor at: reni.gertner@mamedicallaw.com
This article originally appears in the Spring 2007 edition of
Massachusetts Medical Law Report.
Back to top
The
impact of apology in Massachusetts
By Amy Johnson Conner
Some lawyers are among the skeptics
who say apologies wouldn’t make any real difference in litigation
in Massachusetts – though many think it could harm defendants,
despite state law prohibiting expressions of remorse from being used as
evidence of liability. It ’s hard to defend a physician who did
not do anything wrong when they’ve sat down with a patient and
said, “I made a mistake,” said Douglas N. Perlo of Boston
medical malpractice defense firm Ficksman & Conley.
But others are more optimistic. A. Bernard Guekguezian points out that
caregivers can express sorrow or sympathy for a bad outcome without
accepting fault for that outcome. It “would go a long way toward
allowing family members to accept that an unexpected medical outcome
occurred without negligence or fault,” said Guekguezian, a partner
at Adler, Cohen, Harvey, Wakeman & Guekguezian. He cautions, though,
that the effect of an apology could be somewhat limited because in many
cases, often those involving death or catastrophic injury, survivors
have no choice, economically, but to file suit. In those cases
it’s survival, not hard feelings toward the physician, that drives
the litigation.
Were it to work, said M. Kate
Welti, also of Ficksman & Conley, the apology would be most
effective if offered before lawyers get involved. “When it gets to
the trial, it’s too late,” she said. “I’ve been
in depositions where it’s so palpable, the anger that these
families feel. I just have to go on the belief that … if you can
get there before the feelings harden and explain it to them so they can
understand that mistakes happen and there’s concern for them
… then I personally believe it wouldn’t get to the point
where I or one of my colleagues are involved.” Welti thinks both
physicians and risk managers are afraid of apologies and disclosure
policies. Slowly, though, they’re getting comfortable with the
idea that they actually can work, she said. “I think most of them
are getting the idea that it’s okay to say you’re sorry, but
it takes a while to permeate the consciousness. I think they fall back
into their old habits of stonewalling,” Welti said.
Forcing that culture to change
isn’t easy. One thing that helps is legislation. According to the
Sorry Works! Coalition , 35 states have laws that exclude apologies or
expressions of sympathy from being used as evidence of liability.
Massachusetts is one of them. “To the question of whether you can
do it in Massachusetts,” Kraman said, “there’s only
one answer. Are you treating people?”
Back to top
Summary
By Henry Tulgan, M.D., FACP
The medical community and others
now appreciate that apology for medical mistakes may reduce malpractice
litigation and even in successful actions, reduce awards. This change in
approach from the traditional silence when errors occur has been
endorsed not only by most physicians, but also by attorneys, risk
managers, administrators and insurers. In many states, laws have been
enacted to protect physicians who apologize to varying degrees and the
topic has been the subject of recent books and articles in national
medical journals.
How comprehensive an apology should
be is less clear. Although some experts advocate full disclosure, others
suggest a more simple empathetic statement. The key in either case is
how genuinely the statement is expressed. What is evident is that each
patient should be dealt with individually.
Dr. Aaron Lazare, former Dean and
Chancellor of University of Massachusetts Medical School and renowned
author on the subject of apology, gives the following definition: (1) an
admission of responsibility for an offense followed by expressions of
regret, remorse & forbearance, (2) justification or explanation
(apologia).
Dr. Lazare also cautions that there are various types of failed
acknowledgements that include offering a vague and/or incomplete
offense; using the passive voice; making the offense conditional;
minimizing the offense or using the empathic “I am
sorry.”
In all adverse situations,
apologies should be prompt and sincere. If promises are made to follow
through on investigating the circumstances more fully, this action must
be taken, documented and communicated to the relevant parties. Since
litigation of malpractice may not occur for several years, legal experts
advocate having a thoughtful communication strategy in place immediately
after the adverse incident has taken place.
Some health care institutions have
begun to craft specific policies in this area. Legislators in 35
states, including Massachusetts, have an apology law on the books.
But to date, there is no standard model.
Risk Management Strategies
-
Apology is now considered
appropriate when medical mistakes occur.
-
Apology may reduce litigation or
awards.
-
Apology should be sincere and
empathetic but should not assume physician responsibility for the
event.
-
Litigation may be delayed for
several years.
-
Follow through promises must be
kept.
Proceed to Exam
Back
to Course Overview
Back to top
|
