Apologizing when things go wrong could backfire

April 1, 2008

Communication may minimize malpractice, yet physicians must consider legal advice

Googling the words "Sorry works" takes you to a website that exemplifies a movement for apologies and disclosure to patients, plus upfront compensation after adverse medical events. At www.sorryworks.net, physicians are advised that the medical malpractice crisis is actually a customer service issue that has been "miscast as a legal problem to be solved by politicians."

The movement supports the many states that have passed immunity laws allowing health providers to apologize and express grief to patients who have suffered adverse events, without suffering personal consequences later on in court.

"Doctors will learn that a sympathetic defendant who has done the right thing is a lousy target in the courtroom," the website said.

Radiologists interviewed by Diagnostic Imaging strongly support communication with patients, with some going so far as to say that radiologists should go out of their way to contact a patient directly to express regret in cases of a missed diagnosis.

Many studies have documented the benefits of establishing a relationship with a patient in reducing malpractice suits. Even a short interaction with a patient, if sincere and showing concern for the patient's questions and issues, is helpful, said Dr. Mark Klein, a radiologist at Washington Radiology Associates in the District.

"Improved patient care and enhanced personal satisfaction for the radiologist are the primary gains of interaction with patients. Malpractice benefits represent a secondary gain," Klein said.

Most radiologists, however, have malpractice coverage through a liability carrier and also have attorneys affiliated with their groups or hospitals. Consultation with the legal counsel and insurance carrier may be beneficial prior to discussing the negative outcomes of a particular case directly with a patient, said Dr. Peter Kalina, an assistant professor of radiology at the Mayo Clinic in Rochester, MN.

After a bad outcome, such as a missed diagnosis, radiologists may feel stressed, lose confidence, and want to verbalize these feelings with others, including the patient. Expressing dismay at a particular outcome shows that a physician cares, and this can be reassuring to patients. It may be appropriate, for example, for a radiologist to say he or she is upset, stressed, and sorry that a particular finding was not picked up.

"Direct communication with patients may be the best approach, but you should be somewhat careful in what you say, especially once an attorney becomes involved with the case. Although more states are enacting laws to protect physicians who apologize, anything you say could potentially be used in a courtroom setting," said Kalina, who is also chair of the ACR Ethics Committee.

It may be unwise, for example, to say that a finding should have been picked up, that colleagues would have picked it up, or that you have never missed such a finding before, he said.

"If you give your opinions to a patient, you could wind up with an unpleasant surprise when your words come back at you in a courtroom. Most of us don't have a legal background and, unfortunately, you have to be careful," he said.

Patients could feel good about an interaction with their physician one day and call an attorney the next, Kalina said.

"An apology is a great thing, but it should be done from the heart. There is probably no need for an apology to include medical details," he said.