Should I Apologize? A Guide for Healthcare Professionals

1. Should I Apologize?A Guide for Healthcare Professionals Larry Veltman, MD Portland, Oregon

2. apologize, v. beg or ask pardon, excuse oneself, atone, ask forgiveness, make amends, purge, give satisfaction, make up with, confess, withdraw

3. Providence St. Vincent Medical CenterOctober 22, 2013 • The importance of apology • The importance apology in medicine • When and how to apologize • Review research substantiating the value of disclosure and apology

5. Letter from hospital attorney, six months later: “I can only imagine your grief with the loss of your daughter, and I sincerely apologize that we caused frustration and anger to be added to your loss.” (I hope that this letter is not)…“too little, too late.”

7. Deny any harm occurred Acknowledge the harm; No expression of concern or regret Express concern or regret about the harm; No acknowledgement of responsibility for causing the harm Express concern or regret, acknowledge responsibility, but no admission of wrongdoing (limited apology) The Spectrum of Apology

8. Express regret, acknowledge the responsibility and that the act was wrong (a full apology). Give a full apology and offer to make amends. Give a full apology, offer to make amends, and ask for forgiveness. The Spectrum of Apology

9. SincerityIs a Key Element • It pains you to have had this happen. • You express genuine regret. • You are distressed about it. • You are disappointed with your self. • You ask for forgiveness or at least, understanding. • You ask if you can do anything to make things better.

10. Other Elements of a Sincere Apology • Timing • Early, before any complaint, dispute, or suit • Setting (formality) • Who is present (patient, family) • Manner in which it is given • It is an emotional exchange • It is sincere and believable • It is face-to-face • Choice of words is critical

11. Elements of a Complete Apology Acknowledge any Wrongdoing Acknowledge Harm Express Regret Offer to make Amends Accept Responsibility Ask for Forgiveness

12. Recognizing a Sincere Apology

13. Elements of an Insincere Apology • When the focus is on the reaction rather than the action • “I’m sorry you felt the doctors did the wrong thing.” • When it is over crafted to avoid liability • When looking at pager or typing • When it is given over the phone • When there are phrases like: “I’m sorry, but….” “I’m sorry…OK?” “Sorry ‘bout that”

14. Recognizing an Insincere Apology “Hi, hon. Guess who is going to be on national television apologizing to the American Public?”

15. “Listen up, my fine people, and I’ll sing you a song ‘bout a brave neurosurgeon who done something wrong.”

19. Face-to-Face

20. The need for apology is important daily life Should be part of every physician’s communication skill set. It helps repair damaged relationships and works toward restoring weakened trust. It makes the patient (and the doctor) feel better Apology is an important risk management strategy It subtracts insult from the injury. It may prevent a lawsuit. It will not make the physician look arrogant to a jury. Apology In Medicine

21. Physician’s Problems With Apologizing • It is antithetical to the values of many physicians: winning, success, perfection. • It will lead to a medical liability suit because it admits negligence or liability. • The patient will leave. • It is not important. • It undermines trust because of the high expectations that physicians should not make mistakes.

22. What Do Our Patients Want?Patients Views on Disclosure of Medical Errors(Annals Internal Med., March 16, 2004) • I would want to be told as so as it was discovered - 98.8% • I would want to know that something was being done about it to make sure that it didn’t happen again – 98.7% • I would want to be told in person rather than over the phone – 90% • I would want the doctor to tell me the he or she was sincerely sorry – 87.8% • I would want the medical fees related to the error to be waived – 86.5%

23. What Many Are Thinking: “Here come the suits.”

24. “Often a ‘vicious cycle’ exists where following an error, the physician wants to apologize but refrains from doing so out of fear of legal liability, and it is precisely the absence of an apology that triggers the lawsuit.” (Jonathan Cohen)

25. “I’d like to drop everything if he would just apologize.” “If he wants an apology, he can have one, but I think he owes me an apology, frankly, for making me go to court for 2 ½ days and making me close my practice and filing a frivolous lawsuit.” “I’m happy. That’s exactly what I was looking for. He should have apologized in the beginning. I never wanted any money.”

26. When Medical Error Becomes Medical Malpractice (Ann. Surgery, April, 2003) Chief of Surgery: “One of the things …..we …. learned in handling error is that we forget to tell the patient and the family that we are sorry. Not that we are sorry that you made a mistake, but that you are sorry that something bad happened to them. The single most common thing that patients and families raised when they came to the (hospital) legal office was that nobody even said. ‘We’re sorry.’”

27. Gallagher TH, Waterman AD, Garbutt JM, et al. US and Canadian physicians’ attitudes and experiences regarding disclosing errors to patients. Arch Intern Med. 2006;166:1605-1611.

28. The Fear of Litigation is Real

29. Medical error disclosure: the gap between attitude and practice. Ghalandarpoorattar SM, Kaviani A, Asghari F. Postgrad Med J. 2012;88:130-133.

31. Legal Issues: Do “Apology Laws” Help? • “The portion of statements, writings, or benevolent gestures expressing sympathy of a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. • A statement of fault, however, which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section”

32. Source: http://content.omaha.com/media/maps/online/livewell/law.jpg

33. Oregon’s Apology Law HB 3361June, 2003 “Section 1. (1) For the purposes of any civil action against a person licensed by the Board of Medical Examiners, any expression of regret or apology made by or on behalf of the person, including an expression of regret or apology that is made in writing, orally or by conduct, does not constitute an admission of liability for any purpose.”

34. When You Apologize • Get expert help and advice • Prepare carefully • Include the family • Rehearsal, Rehearsal, Rehearsal • Document appropriately

35. A Problem:Misinterpretation Is Easy • Patients may be in a state of shock and don’t process what they hear. • An unanticipated outcome can be perceived as an error – they are not always linked • Common in our society to misinterpret apology as admission of wrong doing. • This intensifies with a lawsuit that has a life of its own and its now about winning and losing.

36. Is there a way to make a“safe” apology?

37. The Effective, Complete Apology • It is a sincere, emotional, face-to-face and believable exchange. • Acknowledgement that the patient was harmed. • An expression of empathy for what the patient is going through. • Expression of regret by the physician. • Promise to work toward this not ever happening again. • A promise to be there for the patient through the recovery

38. Gallagher TH, Garbutt JM, Waterman AD, et al. Choosing your words carefully: how physicians would disclose harmful medical errors to patients. Arch Intern Med. 2006;166:1585-1593.

39. Different Adverse Outcomes, Different Apologies, Different Disclosures • Adverse process outcomes; ultimately a good result • Disappointing outcome without any error • Error or a mistake leading to a temporary, but ultimately correctable condition • Error or mistake leading to permanent disability or death

40. What You Can Say

42. Does This Work? • Veteran’s Administration • COPIC Insurance • DecisionQuest, Inc. • University of Michigan

43. Lexington, Kentucky VA • Full disclosure, apology, assistance with compensation and claim • 88 claims (1990-1996) • 1.3 million over 7 years ($190,000/yr) • Average 15,662/claim

44. Payments in 35 VA Facilities Lexington VA

45. COPIC Insurance 3Rs Pilot Project: Early Intervention and Conflict Resolution • Recognize, Respond, Resolve • Post-Incident Risk Management • Recognize, Communicate, Ensure, Arrange, Reimburse • With an untoward event: • Early intervention and explanation • Financial help bills • Patient may still pursue legal action • Voluntary physician participation (1/5 of insured) • Not reportable to data bank • 13,000 incidents • 8500 met criteria • Average amount $4900 • Few lawsuits

46. Why does Disclosure Work?Because Juries Expect It • DecisionQuest: Mock trial with only variable being disclosure or non-disclosure of a mistake – 600 surrogate jurors • 89% said medical professionals should always admit mistakes • 81% said patients should be informed of mistakes even when there was no harm • 73% said that it is negligent to not inform the patient of a mistake even if no harm • Shifted focus from negligence to causation with disclosure • Improved credibility of the witnesses with disclosure • Punitive and compensatory damages were less with disclosure

47. Approach to Medical Errors University of Michigan Health System. • Acknowledge injuries due to medical error • Compensation quickly and fairly • Aggressively defend cases without merit • Study all adverse events to determine how to improve systems Clinton and Obama, NEJM (2006) 354; 21, 2205.

48. Results of Medical Error Disclosure Program University of Michigan Health System. Clinton, H. R. et al. N Engl J Med 2006;354:2205-2208

49. University of Michigan Kachalia, A., et.al., Liability Claims and Costs Before and After Implementation of a Medical Error Disclosure Program. Annals of Internal Medicine. 2010 Aug;153(4):213-221.

50. What to Write in the Chart • Met with the family. • Expressed empathy. • Explained the result (the current status). • Explained the plan for additional treatment and follow-up. • Expressed continued commitment to the patient and family. • DON’T write, “called my attorney,” “discussed at QA meeting,” or “I smell a lawsuit.”