Does saying “sorry” to a medical error increase or decrease liability?

The Nerdy Nurse made a great comment in response to whether our healthcare system is too litigious:

If we extend [a] little more respect and customer service to our patients, I believe the number of lawsuits would decline. remember, patients don’t sue their friends. Make them feel welcome and treat them like a human being, and not just bed 302.

But, would the lawyers agree or even allow admission of liability?

The legal response to an error or mistake is to deny liability. If communication counsel is sitting beside legal counsel, the response may sound a little humane — “we are sorry for what happened to the patient” etc, etc, however liability is still denied. As a lawyer and a communicator, I know because I’ve been there and done that. But, is that the smart thing to do?

In a study published in the Journal of Internal Medicine, researchers wanted to find out whether the disclosure of medical errors influenced how patients responded. So, in a randomized study, 470 people were shown videos of different levels of disclosure related to two different medical errors, and asked to evaluate how they would respond.

The researchers concluded:

full disclosure is likely to have a positive effect or no effect on how patients respond to medical errors. The clinical outcome also influences patients’ responses.

One obvious shortfall of this study is that it asked for patients’ responses to a disclosure and an error that were acted out. Although perhaps based on fact, neither the disclosure or the error happened to the patients. Would they have acted differently if it had really happened?

In a program started in 2001 and reported on in 2010, the University of Michigan Health System adopted a process of full disclosure of medical errors.

Did it work? The 2010 report concluded:

The program increased error reporting, significantly reduced malpractice claims and costs per claim, hastened the claims resolution process, reduced insurance reserve requirements, and has resulted in significant savings to the health system (specific savings data are unavailable). Feedback from both physicians and malpractice attorneys has been quite positive and the quality of the dialogue between plaintiffs’ attorneys and the health system has improved significantly, diminishing the adversarial nature and leading to constructive outcomes.
So, The Nerdy Nurse, you got it right. Show humanity and the number of law suits and associated costs will go down!
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Comments
6 Responses to “Does saying “sorry” to a medical error increase or decrease liability?”
  1. started writing a comment, decided it needed its own blog post. So I blogged and gave you some linkbacks 🙂

    Can Saying “I’m Sorry” Impact Liability in Medical Errors? : http://www.thenerdynurse.com/2011/04/can-saying-im-sorry-impact-liability-in-medical-errors.html

  2. Jordan says:

    In Ontario we have an Apology Act that is intended to ensure that an apology has no impact in litigation, by making it inadmissible and deeming it not to be an admission in a civil proceeding and by making sure that it can’t prejudice coverage under an insurance policy

    • Michael Wong says:

      As Jordan points out, there are “apology acts” on the books of Canadian provinces and US states. It would be interesting to know whether these legislated sorry acts have made it easier or more frequent for disclosure and apologies to be made. Because even though the Journal of Internal Medicine study and the University of Michigan Health System indicate from both a business and a human point of view that apology works, unfortunately it is little practiced.

    • Michael Wong says:

      Of interest, Michigan just became the 36th state to legislate “sorry” legislation – http://www.ama-assn.org/amednews/2011/05/02/prbf0502.htm#1

      Think the bigger question is whether these acts have had a practical effect on, say, reducing suits, amount of liability, etc.

      Would love to hear perspectives/research/etc on this!

  3. Matthew Schiffgens says:

    I think the short answer is no in terms of the sheer number of overall awards/settlements, and yes in terms of the relative $ per award/settlement.

    However I think the better question to be asked is an apology the right thing to do for patients and their family’s, caregivers/care teams, and our health care system as a whole.

    As for patient’s families I think the answer is they deserve an explanation of what happened (and why), what is being done to ensure the error won’t happen again, and the offer of a remedy (additional medical care at no cost if necessary to remedy the error, and/or compensation for lost wages during recovery).

    As for caregivers/care teams, I believe the answer is also yes in terms of allowing them to grieve and recover from what is for them a traumatic event as well. Further, an apology is also vital in restoring/maintaining a relationship of trust and caring with the patient involved in the error.

    As for our health care system, identifying and fixing the complex systems/process that ultimately lead to errors is vital in terms of improving the overall quality/cost of care, and for reducing the likelihood of that error happening again.

  4. Dave Ray says:

    Absent an apology act it certainly increases liability but I have to believe that many law suits would be avoided if someone just said they were sorry. It seems like a strange comparison but I do a lot of harassment investigations and nearly all complaints that I had to investigate could have been avoided if the source of the discriminatory/offensive remarks had just apologized.

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