A visit by a physician and the risk management person from the hospital can turn a potential lawsuit into a settlement, monetary or otherwise, between the patient and the provider, never precipitating a call to an attorney. But for many physicians, an apology means admitting a mistake, hence inviting a lawsuit. Research indicates, however, that a well-crafted apology reduces the likelihood of a lawsuit ever being filed. And more than 30 states have some sort of "apology law" for physicians, making apologies inadmissible to prove fault even if a suit occurs following a mea culpa.
Etherton agrees that an apology reduces the chance that a patient will contact a plaintiff's attorney, and is torn on how to advise clients.
"As a person in this world hoping that physicians will do the right thing and be the better person when something does go wrong, I would really encourage the apology," she says. "…I think when there is no apology and something has gone terribly wrong, you almost guarantee yourself a lawsuit."
As a plaintiffs' attorney, Etherton is "not a big fan" of the physician apology as it decreases the number of cases that are litigated and results in reduced financial awards for the plaintiff. "There are so many clients out there who will call us who simply are looking for answers to some basic questions about what happened," Etherton says. "I think a lot of that could be prevented by a five-minute discussion."
But suppose you don't think that you or anyone else on the patient's care team is to blame for an unfortunate turn of events. Even then, you're wise to offer an expression of sympathy: "I'm sorry your health has taken this turn and I promise to do everything we can to help you get better."
One such "apology law" is in effect in California, where Daniel Groszkruger serves as program manager of risk management for the Stanford University Medical Center. The facility includes a 600-bed adult hospital, a 300-bed children's hospital, and 1,400 members in its faculty practice group for the university's school of medicine.
While Groszkruger does not make it a practice to recommend an apology for a medical error, he says, "I think that a physician who feels genuine regret, for example, regret the patient's recovery was prolonged or incomplete," should be able to offer an expression of sympathy "without fear that such a gesture will be misinterpreted as an admission of fault."
A study in the journal Medical Care recently indicated that only about 25 percent of patients, when told about a medical error in the context of an apology, would still file a medical malpractice lawsuit; with an offer of remediation, 38 percent would still recommend the hospital after the error. Additionally, 60 percent of respondents who indicated faith that their physician would disclose an error said they would still recommend that doctor to another person.
Communication is key
Apologies are just one form of what our experts say is another key element to decrease the potential of a lawsuit: proper communication.
Patients and family members involved in a bad outcome are looking for information, and they are turning to you for it. Proper communication can truly avoid litigation, according to retired family physician V. Franklin Colon.
"In more than 40 years of medicine, I never faced a malpractice suit. How? I maintained open communication with my patients," says Colon, director emeritus of the Bethesda Family Practice Residency Program in Ohio and professor emeritus of family medicine at the University of Cincinnati.
Colon was still involved in the legal arena, however, having reviewed more than 300 cases for both plaintiff and defense attorneys. That experience helped him author several pieces on how physicians can avoid malpractice suits, as well as a book, "Medical Malpractice: Risk Management."
He recalls cases where surgeons got sued in part because they would not talk to a patient's family. They made rounds at 5 a.m. and 10 p.m. to avoid such contact, so angry family members sought answers from an attorney.
"All you have to do is sit down with these folks for a few minutes and deal with them on a person-to-person basis, not doctor-to-patient," he says. "People think doctors are arrogant already."
Groszkruger, who is also an attorney and had his own practice for more than 20 years, says the patient-physician relationship can be boiled down to one key question when it comes to malpractice: "Tell me doctor, at what point did your patient feel more comfortable talking to an attorney than to you?"
He notes that it is key for physicians to stay in touch with patients, especially if there is a bad outcome as a result of their care.