To Err Is Human

To Err Is Human—but Should You Apologize?

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Despite your best efforts, medical errors can occur. What should you do if this happens to you? Many clinical experts now agree that the best course of action is disclosure of the error as well as a ‘medical apology.’

According to The Institute of Medicine, more people die in hospitals from medical mistakes each year than from breast cancer or from motor vehicle accidents.[1] No matter how well trained or hard working, healthcare providers make mistakes, just like other professionals. Some data suggest that medical errors occurs between five and 80 times per 100,000 consultations, related most often to diagnostic errors and then prescription errors.[2] Prescribing errors are of particular concern because more than half may go unnoticed until they actually reach the patient.[2]

You’re smart and you’re careful. So, how do errors happen? Consider these two examples:

  1. You administer a flu shot to a patient, who almost immediately develops an allergic response. Nothing in the chart indicates a medication allergy. Upon further investigation, you learn that your patient’s chart was mixed up with the chart of another patient having the same name.
  2. An elderly, somewhat confused, and vision-impaired woman comes in for an annual check-up. She is accompanied into the exam room by your medical assistant, who then goes off to get some fresh supplies. The patient then tries to leave the exam room, falling and breaking a hip in the process.

Can you picture yourself in these examples? In both examples, you and your staff were doing your best. And that is an important point: most healthcare providers do not intentionally commit medical errors. (In the medical setting, a medical error refers to physical or psychological harm that could or should have been avoided by ordinary standards of process, care, or behavior[3]—as demonstrated in each of the two scenarios above.)

When patients suffer a treatment-caused injury or harm, regardless of the cause, they’re likely to experience a wide spectrum of emotions that range from fear and confusion to anxiety and a sense of misplaced trust.[4] Research suggests that following an adverse event, patients want an apology, an explanation of what happened and someone to take responsibility.[5] However, practice appears to fall short of this, with less than a third of patients even told about harmful errors: with a wide variation in what physicians choose to disclose.[6] If the incident is left unacknowledged by the clinician involved, the anxiety and fear can turn to anger and humiliation—and ultimately, to legal action.

Disclosure Versus Empathy and Apology

The American Medical Association Code of Ethics[6] states that a physician is required to disclose to a patient when a mistake is made and that liability fears should not impede this disclosure. Full patient disclosure of the circumstances surrounding a medical error is almost always the ethically and professionally responsible course of action, and is vital for improvement of patient safety and quality of care.[7] Disclosure also provides the patient with potentially vital information for making future healthcare choices and decisions. However, studies suggest that less than half of harmful errors are disclosed to patients, in part because healthcare providers fear lawsuits, professional scrutiny, and an insecurity about which words to choose to describe the error[8,9](Table 1).

What’s the difference between disclosure and empathy and apology? 

Disclosure is the communication of an error without an admission of culpability. Empathy is the expression of regret, with no acknowledgement of responsibility. An apology, however, incorporates an acknowledgment of responsibility for an error coupled with an expression of remorse, an explanation of how the error occurred, and a commitment to learn how similar errors can be avoided in the future.

Despite some controversy as to the legal ramifications of apologizing to a patient, it’s an important step in repairing your relationship. If patients are injured in some way by your inadvertent mistake, they may feel hurt, betrayed, devalued, humiliated, and afraid. By taking responsibility and apologizing, you acknowledge their feelings, show an understanding of their impact, and can begin to make amends. By not apologizing for adverse events, you fail the patient in terms of honesty, openness, and respect[4] (Table 2).[10]

When and How to Apologize

Timing of a medical apology is crucial because of the emotion surrounding the occurrence of a medical error. If you do it too soon, you may not have enough facts. If you wait too long, you might be suspected of deception or disregard. Ensure sufficient time, a comfortable space such as a conference room, and adequate privacy so that a meaningful and, likely, emotional conversation can take place. Consider who should be present, from both the patient’s point of view as well as your own. Having more people participate increases the chance that all relevant concerns will be discussed, but also raises the risk that the moment will be less personal and, perhaps, less effective.

Open the dialogue by maintaining an open and receptive posture and good eye contact. Speak empathically and avoid jargon, defensive statements or angry rebuttals.

Begin by asking the patient and the family about their understanding of what happened. After their explanation, describe in chronological order each step that occurred leading up to the error. Let them know that you share their frustration that the mistake happened, and express your remorse. To the extent possible, describe what can be done to prevent similar errors from occurring and how others may be helped by what was learned.[11]

The Legal Ramifications

Whether more disclosure will increase or decrease your liability remains unclear. Some clinicians and risk managers worry that admitting a medical error may invite lawsuits and disputes about compensation amounts.[11] Others counter that prompt disclosure and an apology may actually reduce liability because patients value a healthcare provider that is honest, apologetic, and committed to learning from the mistake.[12] According to Lucien Leape, MD, adjunct professor of Health Policy at the Harvard School of Public Health, “Patients want to know what happened. Up to two-thirds of patients sue their physicians because ‘they want to learn what happened and what caused the error.’”[13] And according to Andrew Mayer, a malpractice attorney in Boston, physicians who acknowledge a mistake and apologize may actually fare better in a malpractice suit because they’re less likely to repeat the error.[14]

The most recent published data about the effects of disclosure on litigation support the concept of disclosure and apology[15-17] Unfortunately, these data are derived from hospital patients, so it’s difficult to extrapolate those results to primary care. But it seems reasonable to presume that your patients want what hospital patients want—full disclosure of an unintended error accompanied by an apology.

‘Apology statutes’ were designed to promote disclosure of medical errors by protecting clinicians who apologized for an error. According to these laws, expressions of apology made after a medical error are excluded from evidence in a malpractice suit. There are two types of apology statutes[18]:

  • Sympathy only: protects a physician’s expression of sympathy, regret, and condolence
  • Admission of fault: protects a physician’s admission of fault and error (in addition to expressions of sympathy, regret, and condolence)

In 1986, Massachusetts was the first state to enact an apology law. Since, then 35 additional states and the District of Columbia have enacted one of the two types of apology statues—although most states have adopted the sympathy only law (28) rather than the admission of fault law (8). Because most apology laws have been enacted only since 2005, time to evaluate their impact on malpractice litigation has been limited. And because laws vary in what they protect from admissibility in court, many insurers discourage doctors from apologizing for fear it could hurt them in court.

Practice Pearls

Nobody likes to admit mistakes, but sometimes things go wrong.

In 2006, the Harvard School of Medicine’s 16 affiliated teaching hospitals developed this approach for talking to patients about medical errors and about adverse events.[19] While designed for hospitals, the outlined steps can help you think about how to best manage this difficult issue within your own practice.

Immediately after the event

  • Acknowledge the event
  • Express regret
  • Take steps to minimize further harm
  • Explain what happens next
  • Commit to investigate and find out why the adverse event occurred

 

Later follow-up

  • Disclose the results of the internal investigation
  • Apologize if there is an error or systems failure
  • Make changes to prevent the failure from recurring
  • Provide continuing emotional support to the patients and health professionals involved

 

Related Resources:

The American College of Physician Executives has produced a multimedia toolkit relating to disclosures and apologies for medical errors.
Sorry Works Advocacy group bridging the gap between medical, insurance, and legal professionals in issues related to malpractice, disclosure and apology.

 

Jill Shuman, MS, ELS
Published on May 17, 2011

References
  1. Kohn LT, Corrigan JM, Donaldson MS, eds; Committee on Quality of Health Care in America Institute of Medicine. To Err Is Human: Building a Safer Health System. Washington, DC: National Academy Press; 2000.
  2. Kuo GM, Phillips RL, Graham D, Hickner JM. Medication errors reported by US family physicians and their office staff. Qual Saf Health Care 2008;17(4):286-290.
  3. Lazare A. Apology in medical practice: an emerging clinical skill. JAMA. 2006;296(11):1401-1404.
  4. Leape, LL. Full disclosure and apology–an idea whose time has come. Physician Exec. 2006; 32(2):16-18.
  5. Witman AB, Park DM, Hardin SB. How do patients want physicians to handle mistakes? A survey of internal medicine patients in an academic setting. Arch Intern Med. 1996;156(22):2565-2569.
  6. American Medical Association Code of Ethics. American Medical Association website. http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics.page Accessed May 13, 2011.
  7. Kaldjian LC, Jones EW, Rosenthal GE, et al. An empirically derived taxonomy of factors affecting physicians’ willingness to disclose medical errors. J Gen Intern Med. 2006;21(9):942-948.
  8. 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(15):1585-1593.
  9. American Society for Healthcare Risk Management (ASHRM). Disclosure of unanticipated events: the next step in better communication. ASHRM, 2003. http://www.ashrm.org/ashrm/education/development/ monographs/monograph.disclosure1.pdf.
  10. Roberts RG. The art of apology: when and how to seek forgiveness. Fam Pract Manag. 2007;14(7):44-49.
  11. Butcher L. Lawyers say ‘sorry’ may sink you in court. Physician Exec. 2006;32(2):20-24.
  12. Wojcieszak D, Banja J, Houk C. The Sorry Works! Coalition: making the case for full disclosure. Jt Comm J Qual Patient Saf. 2006;32(6):344-350.
  13. Lucien Leape. Apologizing effectively to patients and families. Institute for Health Improvement, 2008. http://www.youtube.com/watch?v=kDfoJXq8BRA.
  14. Instead of Lawsuits, Medical Apology. WBUR Public Radio Boston. February 1, 2008. http://www.wbur.org/media-player?source=radioboston&url=http://radioboston.wbur.org/2008/02/01/medical-apologies/&title=Instead+Of+Lawsuits%2C+Medical+Apologies&segment=&pubdate=2008-02-01.
  15. Kachalia A, Kaufman SR, Boothman R, et al. Liability claims and costs before and after implementation of a medical error disclosure program. Ann Intern Med. 2010;153(4):213-221.
  16. Kraman SS, Hamm G. Risk management: extreme honesty may be the best policy. Ann Intern Med. 1999;131(12):963-967.
  17. Peto RR, Tenerowicz LM, Benjamin EM, et al. One system’s journey in creating a disclosure and apology program. Jt Comm J Qual Patient Saf. 2009;35(10):487-496.
  18. McDonnell WM, Guenther E. Narrative review: do state laws make it easier to say “I’m sorry?”. Ann Intern Med. 2008;149(11):811-816.
  19. Leape LL. The Power of Apology. NPSF Patient Safety Congress, May 11, 2006.