Should Radiologists Apologize?

July 31, 2014
Jennifer Anderson

When medical errors are made, should radiologists admit fault?

When a radiologist makes a mistake that harms a patient, he or she probably should apologize.

“But in reality - it’s very hard to say to a patient that you’ve made an error, and it’s your fault,” said Leonard Berlin, MD, professor of radiology at Rush University and the University of Illinois, both in Chicago.

Eroding Trust
Whether radiologists, and indeed all physicians, should apologize has been scrutinized since at least the late 1990s, when the Institute of Medicine published an article that, as Berlin put it: “startled the nation and captured the immediate attention of nearly every newspaper and television and radio news program.”  

To Err Is Human: Building a Safer Health System reported that as many as 98,000 people die each year in hospitals as a result of medical errors that could have been prevented.

The article mentioned a five-year goal of reducing mistakes by 50 percent.

“We didn’t even come close,” said Lucian Leape, adjunct professor of health policy at Harvard School of Public Health.  “There was no real national effort, and no federal support to speak of.” 

But even the acknowledgement of errors signified progress, said Leape, also a surgeon and professor of surgery for 25 years at Tufts University School of Medicine.  “It’s long overdue, and thank God it’s happening.”

Leape explained that medicine for the past 200 years has been a conspiracy of silence. Doctors were told in their formal education and from their mentors and lawyers not to admit fault or apologize.

The instruction is well-heeded. “Doctors are reluctant to apologize, and most don't do it,” he said. 

At root is a belief that retaining a patient’s trust required a façade of being all-knowing and in control.

In fact, failure to disclose a mistake has the opposite effect, Leape said. When something goes wrong, and the patient does not believe he or she is getting straight answers, trust erodes.

Taking a Stand
Leape criticized the American Medical Association and other medical oversight and accreditation organizations for failing to take the lead on apology. 

The Joint Commission, which accredits healthcare organizations including hospitals and self-standing radiology groups, encourages but does not require apologies.

Disclosure of unanticipated medical outcomes to patients or their families, however, is required, said Paul M. Schyve, MD, the Joint Commission’s senior advisor for healthcare improvement. Failure to disclose “could be cited as a standard out of compliance,” he said. 

In an e-mail response to a media inquiry, the American Medical Association stated that it does not have an apology policy but supports laws that make apology inadmissible in court.

The American College of Radiology did not immediately respond to media inquiries on apology.

Barriers to Apology
Berlin estimated a 3 percent average mistake rate per day for radiologists - the vast majority of which are harmless.[[{"type":"media","view_mode":"media_crop","fid":"26641","attributes":{"alt":"","class":"media-image media-image-right","id":"media_crop_7324033509481","media_crop_h":"0","media_crop_image_style":"-1","media_crop_instance":"2510","media_crop_rotate":"0","media_crop_scale_h":"0","media_crop_scale_w":"0","media_crop_w":"0","media_crop_x":"0","media_crop_y":"0","style":"height: 375px; width: 250px; border-width: 0px; border-style: solid; margin: 1px; float: right;","title":" ","typeof":"foaf:Image"}}]]

When a rare mistake of consequence does happen, fear generally drives radiologists to silence, he states in a 2009 report, The Mea Culpa Conundrum, published in Radiology.  A “well-founded fear,” according to the article, is of medical licensing board disciplinary action. Indeed, 50 percent of people surveyed believe that suspending a physician’s medical license reduces medical errors. 

“State boards are clearly under increasing pressure to escalate their investigative and disciplinary activity,” the article states.

There also is the fear of losing referrals, hospital admitting privileges and the like, as well as the shame and guilt that accompanies recognition that a mistake has been made.

But perhaps the biggest fear is of a malpractice suit - a “traumatic” experience for any radiologist, the article states, even if he or she ultimately is exonerated.

While the question of whether disclosure and apology will reduce the likelihood of a lawsuit “remains hotly contested,” the article states, transparency policies at several hospitals suggest disclosure and apology, in the end, reduce the risk of litigation.

The 1999 Annals of Internal Medicine article Risk Management: Extreme Honesty May Be the Best Policy describes the unexpected financial benefits experienced by the Veterans Affairs Medical Center in Lexington, Ky. after switching to a “somewhat radical policy” of notifying patients whenever a medical error was discovered.

Malpractice claim payments dropped from more than $1.5 million in 1987 to an average of $190,000 per year after the policy took effect.

In the article, the authors state that they believe the hospital’s “moderate” liability payments - due in part to honest notification of substandard care and help in filing claims - “diminishes the anger and desire for revenge that often motivate patients’ litigation.”

Virginia Ashby Sharpe, chief of ethics policy at the U.S. Department of Veterans Affairs’ National Center for Ethics in Health Care, clarified that the nature of the apology depends largely on the extent of harm done.

“You don’t need to burden patients with things that have no relevance,” she said.

A mistake that leads to death or disability requires what Sharpe described as an institutional approach, in which hospital leadership or members of a risk management committee participate in all communication with patients. 

The leaders express concern and render an apology that includes an explanation of the facts.  “It does not have to say we know everything, but it means we’re sorry this happened on our watch, and we’re doing everything we can to understand how it happened,” Sharpe said.

The Apology ‘Process’
Similarly at the University of Michigan Health System, malpractice claims dropped from more than 250 at any given time to fewer than 100 by the mid-2000s, after the hospital created a set of principles to address what Chief Risk Officer Rick Boothman said had been a steady increase in malpractice claims and associated costs.

These principles included open disclosure and fair compensation when a mistake causes harm.

“What constitutes a mistake is really key to our approach,” Boothman said. While unanticipated clinical outcomes don’t necessarily mean a mistake was made, determining the difference can be tricky.

“It gets devilish in radiology circles,” he said, “especially with all of the new technologies and the fact that there’s a lasting picture.”

Boothman cited a 1970s case at a Detroit hospital in which a radiologist, trying his best to read a scan on new technology, failed at the time to recognize a structural abnormality. 

The hospital ended up settling the case, Boothman said, “because of the difficulty of persuading a jury that it’s unfair to apply today’s standards to a study done several years before.” 

Boothman also cautioned on the importance of acknowledging clear medical errors at the outset. “Once you tell someone you didn’t do anything wrong, you can’t un-ring that bell,” he said. 

Citing an old birth-trauma case, Boothman said hospital administrators initially said nothing had been done wrong. A lawyer hired by the baby’s parents ultimately produced a video of the birth, which hospital administrators had never seen. The video clearly showed the doctor’s failure to employ basic maneuvers to protect the newborn.

“It seemed to the parents that the only time we got honest was when they got a lawyer,” he said.

Protection at the Outset
Before even going into practice, radiologists should expect mistakes will be made, said Jeffrey Brian Mendel, a radiologist with Parkland Medical Center in New Hampshire and assistant professor of radiology at Tufts University School of Medicine. 

He advises radiologists to talk with the practice’s insurers or meet with the hospital’s risk management committee and understand the procedures and error policies long before a mistake happens. 

“We don’t want radiologists acting in a vacuum but rather as part of a process,” he said.

Whether the radiologist should apologize or leave that up to the attending physician or other hospital personnel depends on a number of factors, Mendel said.  “My general feeling is that the less isolated radiologists are from patients, less likely they are going to get sued.”

What Do Patients Want?
A heartfelt apology and offer of compensation can, indeed, deter a lawsuit, said Glendell Nix, a personal injury lawyer in Tulsa, Okla.

Nix said he often represents patients who believe they are not getting a straight story. Or, they feel anger toward a doctor who apologizes for the outcome - “I’m sorry this happened” - but not his or her conduct.

“Patients are really looking for the apology that says, ‘I messed up; I did something wrong and caused your injury,’” Nix said. 

In his experience, however, the apology goes only so far. “If [the error] changed his or her life, I think most patients would still pursue a lawsuit,” he said. The monetary award usually is driven by the extent of the injuries as well.

So-called "sorry laws" in most states render a physician’s apology inadmissible in court, but Nix said he’s not sure those laws work to the doctor’s benefit. 

“I think a jury might not award as much in damages if they knew the physician acted in a way you would expect anyone to act when they’ve done something wrong,” he said.

Changing the System
At Rutgers University New Jersey Medical School, Radiology Chairman Stephen R. Baker, MD, said the question of apology does not typically apply in radiology, where doctor-patient relationships are rarely established.

Instead, he said, the focus should be on institutional policies that reduce the likelihood of an error.   

At his institution, it’s not enough for a radiologist to file a report in a patient’s chart. “A conversation must take place,” he said.

Leape, likewise, advocated for systemic changes to reduce medical errors. “What’s driving improvement in patient safety is the recognition that mistakes are caused by bad processes and systems,” he said.

When a doctor does not get a radiologist’s report, “that’s a system issue,” he said. Likewise, if a radiologist misses something on a scan, the system needs to be changed - perhaps adding a second reader on each scan.