Ethicists Say ‘Admit Fault’; Lawyer responds: ‘No Way’

December 1, 2011

CHICAGO - Statements by the American Medical Association, the American College of Radiology and, probably, Hippocrates himself notwithstanding, radiologists should think twice about admitting mistakes.

CHICAGO - Statements by the American Medical Association, the American College of Radiology and, probably, Hippocrates himself notwithstanding, radiologists should think twice about admitting mistakes.

That’s the advice, at least, of Marc D. Ginsberg, a longtime radiology malpractice attorney and now professor at The John Marshall Law School in Chicago.

Yet at the same time, doctors of all stripes are urged to “deal honestly with patients and colleagues,” according to the AMA code of ethics. Leonard Berlin, MD, chairman of the department of radiology at Rush North Shore Medical Center in Skokie, Ill., shared this snippet on Wednesday, during a RSNA 2011 session on malpractice issues in radiology.

To greater and lesser degrees, radiologists work amid a tension spun from competing ideologies, said Berlin, who is one of the radiology profession’s leading ethicists. On one side is scientific method, a search for absolute truth based on the impartial assessment of data. It’s how radiologists are trained to think in medical school.

On the other is legal thinking, forced into the radiologist’s consciousness through the unremitting threat of malpractice suits. Legal argumentation is inherently biased, Berlin explained, purposefully ignoring information contrary to one’s own position and emphasizing evidence in support.

So radiologists must be honest with patients and colleagues even while somehow obscuring or omitting the absolute truth for legal reasons. The data show this to be happening.

Berlin cited several studies that showed, to one degree or another, that radiologists are loath to disclose errors to patients. Stanford Hospital and others are trying out a “divulge-admit-compensate algorithm,” as Berlin put it, and report a reduction in dollars paid to claimants as well as associated legal expenses and the number of malpractice suits – though not in terms of compensation paid to patients for a given injury. He said such an approach may be practical when all expenses are paid by a single entity, but probably not when various players have different insurers. In general, the jury’s still out as far as whether contrition and admission of error reduces or boosts the likelihood of a lawsuit, Berlin said.

In cases of cut-and-dried radiologist misses – when the physician’s deep sense of contrition jibes with unremarked tumors from aged scans – it’s O.K. to admit a mistake to patients, Ginsberg said. You’ll probably end up settling anyway. But otherwise, choose your words carefully, he advised.

The apology laws in force in 34 states say expressions of sympathy can’t be used against you in court. But they don’t protect you if you admit a mistake outright.

“The problem with apology status is the issue of compassion versus guilt,” Ginsberg said. “I think it’s perfectly appropriate for a physician to say ‘unforeseen’ or ‘unintended.’”

He added that out-of-court admissions of guilt are admissible in court “100 percent of the time.”

“You can still be compassionate, but talk to a lawyer before admitting guilt,” Ginsberg said.