A New Kind of Bedside Manner: The Rise of
Apology Policies
By Amy Johnson Conner
Introduction
On February 17, 2011, Gov. Deval L. Patrick
filed a controversial bill that could allow physicians to apologize to
patients while keeping their statements out of court. In section
20 of “An Act Improving the Quality of Health Care and
Controlling Costs by Reforming Health Systems and
Payments,” a health care provider’s
“statements, affirmations, gestures, activities or conduct
expressing benevolence, regret, apology, sympathy, commiseration,
condolence, compassion, mistake, error, or a general sense of
concern” relating to an unanticipated medical outcome would not be
admissible in a trial.
The governor’s legislation used the
University of Michigan Health System’s approach to apology and
medical malpractice as a model. (See http://www.med.umich.edu/news/newsroom/mm.htm)
As of February 2011, thirty-five (35) states have laws offering some
kind of legal protection for physicians who express regret or empathy to
patients after an adverse event. If approved by the Legislature,
the state’s Department of Public Health would draft the final
regulation.
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.
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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.
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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.
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Impact of Apology in Massachusetts
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