Legal: Sorry seems to be the hardest word

Sorry seems to be the hardest word

By Daniel J. Huff, Huff, Powell & Bailey, LLC

Saying that you are sorry is a regular part of everyday life. Being sorry is a common expression for minor events as well as significant life-changing events. There is a place for physician apologies to patients and patient families, particularly when there is been a bad outcome. Recent research suggests that such an apology is beneficial to both patients and physicians. In my practice representing physicians and hospitals in medical malpractice cases, I have seen apologies transform attitudes towards health care providers who are involved in a bad outcome. I’ve seen health care providers and plaintiffs who have been in litigation for years embrace and sob following this simple exchange: “I’m sorry” and “I know.” I’ll bring this up early to acknowledge and move past the fact that apologies are good for patients and good for health care providers. It allows both to share honesty and respect that promotes healing.

Physician apologies

Physician apologies have been touted as one way to avoid medical malpractice litigation. Conventional wisdom is that apologizing to a patient or a patient’s family after a bad outcome prevents them from consulting with a lawyer to pursue a legal action. There is a dearth of empirical evidence to support this conventional wisdom, but it is a widespread belief. Anecdotally, many plaintiffs pursue legal action because they did not know what happened to them or their loved one and a lawsuit was initiated to answer their questions. I personally believe that some patients will pursue legal action regardless of an apology. At the same time, there are some patients who considered legal action but chose not to file a lawsuit after an apology. In the aggregate, apologies are beneficial for physicians both personally and legally. Saying that you are sorry does more good than harm for you and your patients. The drawback to physician apologies has traditionally been that the apology would cause the patient to realize a mistake was made and seek legal counsel. Additionally, physicians are afraid that any apology could be used against them in a legal proceeding as evidence that they made a mistake.

Legal protections

In the last 20 years, 39 states have enacted apology laws. These laws generally make health care apologies inadmissible in a medical malpractice lawsuit. These laws were enacted to 1) encourage physicians to apologize and 2) reform the tort system by excluding evidence that might increase physician liability. Georgia enacted a physician apology statute in 2005. It is codified O.C.G.A. § 24-4-416 and provides as follows… In any claim or civil proceeding brought by or on behalf of the patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, gestures, activities, or conduct expressing regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence which is made by a health care provider or an employee or agent of a health care provider to the patient, a relative of the patient, or representative of the patient and which relates to the unanticipated outcome shall be inadmissible as evidence and shall not constitute an admission of liability or an admission against interest. Georgia’s apology statute is broad, and it covers more than apologies. Most statements after an unanticipated outcome are subject to being excluded under this statute. To the extent that you don’t think that this is a true “tort reform” statute, remember that a comparable statement by a patient or patient’s family member would be admissible under the same circumstances. For example, if a patient said after an unanticipated outcome that, “I’m sorry, I should have come to the hospital much sooner when I first felt sick” it would be admissible to prove the patient’s contributory negligence. Since the adoption of George’s apology statute, statements made after a bad outcome are regularly excluded by trial courts and are affirmed on appeal.

Apology techniques

Georgia physicians should be comfortable giving a candid apology to a patient or patient’s family after an unanticipated outcome. Candor and sincerity are critical to a successful apology. The apology should be delivered in person with an open dialogue to allow questions and answers. Remember that an apology cannot change the past; it’s about the future. Saying that you’re sorry does not mean that you were wrong, but it does mean that you value the relationship you have with your patient and your patient’s family. In the context of answering questions about the unanticipated outcome, be factual. Do not provide opinions about information that is not available to you. It is not the time to blame others for the outcome. It is a time to acknowledge responsibility for your role in the outcome and to promote healing. We have all seen plenty of scripted apologies on television that do more harm than good. Don’t butcher a good apology with an excuse. You may want to have someone with you when you apologize to your patient or patient’s family. You may also want to do it alone. Create an environment that is most comfortable for you and your patient. Documentation of the conversation is always beneficial and can be described generally in the patient’s medical record. Here is a simple example of a way to document an apology… Discussed patient’s unfortunate outcome with his wife today. Explained medical care and prognosis, all questions were answered. The bottom line is that candor, sincerity, and heartfelt apologies (continued on page 23)

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