Saying 'I'm sorry' could stem tide of malpractice claims

February 11, 2006

Right out of training, Dr. Richard M. Chesbrough read a postop film of a patient who had undergone open heart surgery. The surgeon had left a sponge inside the patient, but Chesbrough missed it. When the sponge was finally discovered, the patient was scheduled to come back for a thoracotomy to extract the foreign object. Chesbrough met the patient and his wife before the procedure, showed them the films with the tiny sponge in the corner, and apologized for missing it. They never sued.

Right out of training, Dr. Richard M. Chesbrough read a postop film of a patient who had undergone open heart surgery. The surgeon had left a sponge inside the patient, but Chesbrough missed it. When the sponge was finally discovered, the patient was scheduled to come back for a thoracotomy to extract the foreign object. Chesbrough met the patient and his wife before the procedure, showed them the films with the tiny sponge in the corner, and apologized for missing it. They never sued.

"I'm convinced that because I met with them personally and apologized, they dropped any notion of filing a medical malpractice claim," said Chesbrough, a consultant physician with Henry Ford Hospital in Detroit and director of its mortality/morbidity legal course.

A growing movement in medicine calls for full disclosure of errors. A number of hospital systems and private liability insurance companies around the country have adopted a policy of robust disclosure of medical errors with thorough analysis and intervention, apologies for such errors, and early compensation for patient injury.

Last year, health leaders in Harvard Medical School's major teaching hospitals responded favorably to a comprehensive document that called for physicians to openly acknowledge medical errors to their patients and provide training in apologizing. The document is being revised based on physician feedback. Dr. Lucian Leape, an adjunct professor of health policy at Harvard School of Public Health and the leader of the effort, declined to comment until the review of the document is complete.

In late 2005, Sens. Hillary Clinton (D-NY) and Barack Obama (D-IL) introduced the National Medical Error Disclosure and Compensation (MEDiC) Act. It is designed to propel the medical community to universally adopt a policy of full disclosure of medical errors. MEDiC models successful policies that have been adopted by hospitals and insurance companies around the country. It also creates an Office of Patient Safety and Health Care Quality, which would establish a national patient safety database and conduct data analyses to inform policy and practice recommendations for providers. Further, the program would provide grant money and technical assistance to help doctors, hospitals, and health systems implement necessary policies.

One such successful program that the Clinton-Obama legislation models comes from COPIC Insurance Company, which covers more than 80% of privately insured physicians in Colorado. In 2000, the company launched its 3Rs program: recognize, respond, and resolve unanticipated medical outcomes. The purpose of the program is to preserve the patient-physician relationship by facilitating candid, early communication and to assist patients who have experienced adverse events. Under the program, COPIC will pay patients up to $25,000 for immediate medical expenses and up to $5000 for lost time. Since the program's initiation, malpractice claims have decreased by half, and the cost of settling claims has dropped by one-quarter, according to George Dikeou, a legislative consultant with COPIC.

"We don't ask patients to sign releases or waivers. They can still pursue legal action if they desire, but most do not," Dikeou said.

The program is voluntary, and more than 2000 physicians participate. As of last year, the company had approximately 1500 documented discussions regarding adverse events. Out of those, more than 1000 went no further, and 430 cases resulted in payment in the range of $56 to $30,000. Thirty cases overall went into the claims department, which means the payment wasn't viewed as enough or the patient was unhappy with the discussion. Of those 30, nearly half closed with no payment at all, and the rest are still going through the system.

"The 30 cases that went over to the claims department have been handled without an attorney," Dikeou said.

He also noted a difference in the average payment amount between cases managed through the 3Rs program ($5600) and those settled in court ($287,000 in 2004). These numbers translate into lower malpractice rates, according to COPIC chairman and CEO Dr. Ted Clarke. Approximately 36% of physicians covered by COPIC in 2006 will see a decrease in their premiums, while another 33% will see increases no higher than 3%. Clarke credits the 3Rs program, among other statewide initiatives, for reducing the number of claims against physicians.

Patients generally sue because they are not informed and not consoled, Dikeou said. When COPIC began the program, many Colorado physicians were understandably nervous. They had been told for years by lawyers not to admit to anything. The company worked with physicians, training them on the appropriate way to handle adverse events, particularly how to approach patients. Several years ago, Colorado passed "I'm sorry" legislation, which allows physicians to apologize and express remorse without fear that their words will be admitted in court as evidence of liability or as an admission of guilt. More than a dozen states have passed similar legislation.

SORRY WORKS! COALITION

Illinois recently passed a law allowing two hospitals to pilot a program in which full apologies for bad outcomes from medical errors are combined with up-front compensation. The legislation was proposed by the Sorry Works! Coalition, a group formed in 2005 that includes lawyers, doctors, insurers, and patient advocates. The program will report cost differences between these Sorry Works efforts and the traditional defense method after a two-year period. Illinois is so confident that the program will reduce malpractice claims that it will provide refunds to these facilities if they experience increases in payments, according to Doug Wojcieszak, founder of the coalition.

Dr. Leonard Berlin, radiology chair at Rush North Shore Medical Center in Chicago, doesn't hold much faith in this type of legislation. He cited a case in which a surgeon, after a complication, apologized to the patient. The patient filed a lawsuit but was unable to get an expert witness to testify against the surgeon. He decided he didn't need one, however, because the surgeon had admitted guilt. The lower court dismissed the case, but the superior court allowed it to continue.

"While the Joint Commission on Accreditation of Healthcare Organizations mandates disclosure of all errors, we have to recognize that we live in an adversarial world," Berlin said.

Physicians can apologize, but they should not speculate on the cause, nor should they assess blame on themselves or others, he said. They should tell the patient that an investigation will be held and should immediately involve their risk manager and/or insurance carrier. He noted the unrealistic expectations of patients by citing a 2004 study in the Annals of Internal Medicine by Mazur et al. In that study, 1000 members of a New England health plan were surveyed. Nearly 85% of respondents said patients should be financially compensated for injury due to error, while 13% said they should be compensated even if the injury was not due to actual error. More than two-thirds responded that patients have a right to expect their doctor will not make errors, while 40% agreed that physicians should be punished for errors, including suspension or revocation of their license.

"This survey tells me that there are a lot of strong emotions surrounding the issue of errors. People feel they are entitled to compensation," Berlin said.

He cited another case in which a patient came into the ER with respiratory symptoms. The ER physician read the chest films as normal. While the morning radiologist agreed with the ER physician, he did note a questionable shadow in the lung and called for a follow-up CT scan. The report languished in the medical record. Consequently, the ER physician never saw it, and the patient was never told.

A year later, the patient came back with a cancerous tumor in the spot of the suspicious shadow. The consensus of the hospital staff was to tell the patient about the communication error from the previous year. Six months later, the patient filed a malpractice lawsuit, and the case was settled out of court.

Afterwards, the defense lawyer in the case was asked if the hospital was better off for revealing the truth. He couldn't answer the question from a moral point of view. But from a pragmatic point of view, he said, if you don't tell the patient and the patient finds out later, the patient will sue. If you do tell the patient, the patient will sue.

"Disclosure is fine, but we have to take it out of the tort system," Berlin said. "The only way to get money is to prove negligence. The tort system is supposed to compensate fairly and deter misconduct, but it doesn't do either. Many settled lawsuits are kept secret; so no one ever knows the misconduct of the physician, if there was any."

Seminars, books, and videos abound on how medical personnel should apologize. Researchers at the Johns Hopkins Bloomberg School of Public Health, for example, have developed a 25-minute training video titled Removing Insult From Injury: Disclosing Adverse Events. It features doctors talking with patients to illustrate the best methods for disclosing medical errors. One physician in the video notes that disclosure is almost always in the best interest of the patient, then asks why it doesn't happen more often. The answer, he says, is twofold. First, the natural impulse of humans is to not admit any mistakes. Second, and more important, healthcare professionals are not trained to disclose errors.

In his book, On Apology, Dr. Aaron Lazare, chancellor and dean of the Massachusetts Medical School, says that an apology is one of the most profound interactions that can occur between people. Not only is an apology an ethical statement because it is the right thing to do, but it also serves as a psychological remedy for damage to the professional/patient relationship, Lazare said. It restores the dignity of the patient and offers power to the previously powerless patient. The apology heals the caregiver/patient relationship by the very nature of the acknowledgement, explanation, expression of remorse, and offer of reparation.

One of the first successful full-disclosure programs began in the mid 1980s at the VA Medical Center in Lexington, KY. A study of the Lexington program, published in 1999 in the Annals of Internal Medicine, noted that the VA's candid policy has resulted in more malpractice claims but lower payments. The average settlement per case at the Lexington facility was $16,000 compared with the national VA average of $98,000. An accompanying editorial in the journal said the VA policy seems to be the rare solution that is both ethically correct and cost-effective. The Lexington approach spread to other VA hospitals and went national last year. In October 2005, the Veterans Health Administration directed all of its hospitals to enact full disclosure of medical errors.

Wojcieszak said that similar positive results have been reported at 28 Kaiser hospitals and 39 hospitals in the Catholic Healthcare West System. The University of Michigan Health System has also seen dramatic changes since it adopted a similar policy of full disclosure in 2002. Not only has the average number of pending legal actions dropped by more than half, but the system also is saving about $1.5 million per year in legal bills, according to Rick Boothman, UM's chief risk officer.

Pennsylvania, New Jersey, and Nevada require written disclosure of medical errors, while 18 states have apology laws of some sort. The first such law appeared in 1986, the second in 1999, and all the others have been enacted in the last four years, which is why Dr. Stephen Baker says the movement is a statutory fad.

"While the lawyers think it's a great idea, the patients will figure out it's not such a great idea when they realize they get nothing," said Baker, radiology chair at the University of Medicine and Dentistry of New Jersey.

Baker makes a distinction between a true apology, which involves an admission of an error, some degree of repentance, and some offer of restitution, and an "apologia," which means that one merely commiserates with someone but does not admit fault nor provide for compensation. Three of the state laws specify that the apology and the statement of liability are not admissible in court.

"A statement of commiseration is what they are talking about," he said.

Every lawsuit starts with an angry patient, who doesn't necessarily want to go through the time and hassle involved in a legal solution. An apology and a simple direct explanation diffuse much of the anger. Julie Morath, RN, chief operating officer and vice president of care delivery at Children's Hospitals and Clinics in Minneapolis, helped craft a program called "Partnering with Families: Disclosure and Trust." She and colleagues conducted focus groups to learn that patients and families affected by adverse events want to:

- be the first to know;

- know the story about what went wrong;

- know that changes will prevent the same thing from happening again; and

- know that physicians and hospital personnel are sorry.

"When these needs are met, family trust in the organization and staff remains intact and strong," she said.

Mr. Kaiser is news editor of Diagnostic Imaging.