I’m sorry, please don’t sue me: Do medical apologies avert malpractice claims?

Doctor apologizing-shutterstock_47724541Apologizing for a mistake is always a good idea. With a sincere “I’m sorry,” you acknowledge that harm’s been done, take responsibility for your actions and start to move forward. But for medical professionals, apologizing—something avoided in the past—can have an added benefit: it can discourage malpractice lawsuits.

According to Konstantinos Papadakis, MD, a surgeon at Boston Children’s Hospital, there has been a large movement across the country to pass “apology laws,” which encourage clinicians to “apologize to patients and families if there’s been a medical mistake and to have a conversation in which they disclose the details.” Under these statutes, he says, medical professionals are granted legal protections when having these conversations. Recently, Pennsylvania became the 37th state in the country to pass an apology law. In addition, many hospitals and health care organizations have instituted policies and practices designed to encourage apologies and increase transparency.

“If we turn our backs on our patients, the doctor will be seen as paternalistic or that he’s hiding something and not being truthful,” Papadakis says. “By being transparent, we can bridge those gaps and keep the conversation going.”

The apology and disclosure movement started in Massachusetts with a 1986 statute that granted immunity to medical professionals who expressed sympathy relating to a medical outcome. In 2012, the state built on that law by passing the Health Payment Reform Act, which contains provisions to discourage doctors from practicing “defensive medicine” to head off potential lawsuits. The law holds that “statements, affirmations, gestures, activities or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of concern” made by medical professionals are inadmissible as evidence in a legal proceeding and do not constitute an admission of liability.

In addition, the law establishes a 182-day “cooling off” period before patients can bring legal action.

The disclosure gap

Papadakis, who recently spoke about malpractice and apology at a Boston Children’s Hospital continuing medical education event, says apology and disclosure initiatives represent a break from the past. “For years, the idea was ‘if you make a mistake, don’t admit it to the patient’,” he says. “Doctors don’t want to be embarrassed, and, for liability reasons, they don’t want to admit fault.”

Apology policies address this long-standing “disclosure gap,” as he terms it. By giving doctors legal protection to be open when mistakes are made, Papadakis says, doctors and patients can build a relationship based on understanding and trust, and they can work toward a mutually satisfying resolution.

“If we turn our backs on our patients, the doctor will be seen as paternalistic or that he’s hiding something and not being truthful,” Papadakis says. “By being transparent, we can bridge those gaps and keep the conversation going.” Keeping the conversation going, he believes, can lead to a settlement instead of a lawsuit.

Do apologies prevent malpractice suits?

But do the new policies actually discourage legal action against doctors and hospitals? Critics in the medical, legal and legislative communities “claim the laws are useless in stopping malpractice suits, and that by admitting mistakes, the laws may actually encourage legal action,” Papadakis reports. “Just because I said I’m sorry doesn’t mean you can’t sue me.”

Still, there is strong evidence that apology and disclosure efforts work. Papadakis reports that the University of Michigan Health System (UMHS) implemented a successful disclosure and apology policy in 2001. At UMHS, when an internal investigation into a malpractice claim confirms a medical error, the organization responds by admitting fault and offering compensation. As a result of these policies, the hospital system has seen dramatic drops in new claims, number of claims compensated, time to resolve claims and all claims-related costs. Similar success has been experienced at the Veteran’s Administration, Papadakis says, where a comprehensive transparency and disclosure policy has been in place for many years.

Why have these efforts been successful? A study published in the January, 2014 Health Affairs examined “communications-and-resolution” programs instituted by health systems and insurers. According to the research, successful programs have a few common characteristics: “the presence of a strong institutional champion, investing in building and marketing the program to skeptical clinicians, and making it clear that the results of such transformative change will take time.”

For Papadakis, success comes down to fairness, accountability and sincerity. “When a doctor apologizes, he or she looks more human,” he says, “and patients appreciate the honesty.” Sincere apologies, full disclosure and fair compensation in the event of a medical error, Papadakis believes, can help clinicians improve care, enable patients and families to move forward—and keep everyone out of court.