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Apology as Cure: Should Laws Change to Encourage Doctor to Admit Medical Errors?

Apology as Cure: Should Laws Change to Encourage Doctor to Admit Medical Errors?

Picture of William Heisel

apology, william heisel, sorry works, patient safety, medical errors, reporting on health

As anyone who has had a fight with a significant other knows, the best way to diffuse it is a sincere apology. A few tears with the apology can help, too.

Saying sorry sends the message that you know you did something wrong and you want to work to repair the damage. If you got a ticket for running a red light or lost your temper with another parent at a soccer game, you need to show that you understand your error and that you are going to work to avoid repeating it.

With medical errors, the stakes are much higher than most spousal disputes, but the same principal can work. If physicians acknowledge their mistakes and apologize, patients may be less likely to sue.

An Illinois public relations consultant, Doug Wojcieszak, turned this concept into a program called Sorry Works! that he has been rolling out in states nationwide. He works with hospital organizations to train their staff in how to apologize. He lobbies state legislatures for changes to physician oversight that he says would encourage doctors to apologize, by making it harder for medical boards to discipline them and harder for people to sue them if they say sorry. Here's part of his proposal for medical board reform:

With state medical boards, clinicians who disclose and apologize and work with their hospital/insurance carrier to provide quick & fair compensation will not have disciplinary action taken against their licenses. To qualify for the "disclosure category," there must be a documented apology meeting between the patient/family and clinician(s), and the patient/family must indicate by signature that the meeting happened as part of the settlement and reporting process to the state licensure boards. Any attempts to forge this "apology document" will be met with stiff criminal penalties.  This apology meeting may happen prior to litigation or any time during litigation (including during trial phase). However, only two claims involving apology can be reported to the state medical board in a ten-year time period. More than two claims during a ten-year time period will result in disciplinary action for all paid claims, including those previously shielded.

I have been inclined to like Sorry Works! just based on everything I had read about it and based on the fact that state Rep. Mary Flowers in Chicago had advocated for it. She's a long-time patient advocate who has fought steep odds to enact state-level reforms that help patients know more about their physicians' histories.

But then a group of patient advocates – led by Lisa McGiffert from Consumers Union's Safe Patient Project and Robert Oshel, the designer of the National Practitioner Data Bank's Public Use File – recently started a counter campaign against efforts by Sorry Works! to keep malpractice information out of the National Practitioner Data Bank. Their arguments against some of the reforms being pushed by Sorry Works! made me wonder about the limitations of an apology's power. They wrote:

The result of the ill-advised "Sorry Works!" proposal would be that the NPDB would disclose very few malpractice payments, but more importantly, hospitals, MCOs, and licensing boards could no longer rely on the NPDB to ensure that the information they received on physicians' applications for privileges or licensure is complete and accurate when it comes to malpractice payments. The greatly increased secrecy in physicians' malpractice history would lead to a lack of trust in the NPDB's reliability. The usefulness of the NPDB would be largely gutted. The extremely detrimental impact of the proposal would far outweigh any benefit from disclosure of malpractice solely to injured patients and their families.

The patient advocate group is full of reasonable people, many of whom will be familiar to Antidote readers, including Pat Mastors and Julia Hallisy. They present a constructive critique of the Sorry Works! plan. Both sides in this discussion seem to me to share quite a bit of common ground.

Hallisy and Mastors, for example, both have seen family members victimized by the health system, prompting both to push for new tools to empower patients. Wojcieszak, according to the biography on his website, "lost his oldest brother to medical errors in 1998." The bio says that, "his family successfully sued the hospital and doctors with the case settling in 2000."

The hospital attorneys - not the doctors - empathized with the Wojcieszak family, but only after the case was settled and money exchanged hands, and they never admitted fault or apologized for the incident." He has argued that medical malpractice settlements should not be kept secret, saying the common practice of confidentiality agreements are a "disaster for patient safety".

Both sides, too, have marshaled an array of facts and data to back up their arguments. In my next post, I'll suggest some ideas for investigations based on some of that data.

Related Posts:

Apology as Cure: Dig into Data to Find Number of Patients Harmed

Q&A with Mary Flowers: Looking for New Ways to Improve Patient Safety

Hospitals must change surgical scrub culture from within

Serious Complications: Should Andy Rooney's Cause of Death Be Kept Secret?

Q&A with Alan Bavley: Finding Gold in the National Practitioner Data Bank

Q&A with Journalist Alan Bavley: Keeping Track of Medical Malpractice Frequent Fliers

Photo credit: Maroon Surreal via Flickr

Comments

Picture of Anne Polta

I was on the receiving end of a medical injury several years ago and have yet to hear an explanation or apology. (I'm pretty sure at this point that I never will.)

I'm familiar with Sorry Works! and I think their mission tends to be somewhat misconstrued. Yes, they advocate for apology, but they also advocate for fair compensation for patients who have been harmed - mediation and negotiation, if you will, instead of a potentially more adversarial trip through the legal system. Is this a sell-out? Well, maybe it depends on how you look at it. There's a lot of emotion surrounding medical harm, and historically the health system hasn't been very good at dealing with it. It can cause a tremendous amount of anger and psychic damage and make it very difficult for patients/families to ever interact with the system again. My sense is that the disclosure and apology movement is at least partially aimed at trying to mitigate this, and I don't think this is a bad goal.

One of the unfortunate truths about medical harm is that fear of being sued has been a huge barrier to openness. It's hard to persuade physicians and organizations to support disclosure if they think they're going to be punished for it - not to mention the shame and embarrassment that seem to be an even bigger underlying issue. For what it's worth, I think patients/families can be more forgiving and understanding than they're given credit for. But it's often easier to blame them and to trot out the lawsuit factor as an excuse for not accepting responsibility for one's mistakes.

I think there is room for some middle ground here. What I don't want to see is a deal with the devil - that is, watering down the open exchange and reporting of malpractice and patient safety data in exchange for disclosing and apologizing to the patient/family. This is not a chess game or an afternoon at the swap shop; this is about behaving like ethical, responsible human beings.

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[...] and Robert Oshel, the designer of the National Practitioner Data Bank’s Public Use File are not in favor of the campaign . [...]

Picture of Robert Oshel

Like most patient safety advocates, I highly value admission of errors and apologies.  A quick admission and apology often heads off a malpractice suits and, more importantly, often leads to steps being taken to prevent similar errors in the future. 

A major problem with the "Sorry Works!" proposal is that it facilitates neither of these two goals because the apology and admission do not have to be timely.  Quoting from the proposal: "This apology meeting may happen prior to litigation or any time during litigation (including during trial phase)."  Once the apology has been given, the physician is in most cases off the hook for any possible action by the licensing board.  Furthermore, even if the physician lies on an application for licensure or clinical privileges by not listing a malpractice payment that may have resulted from the incident, the National Practitioner Data Bank would be prohibited from informing hospitals, MCO's, or licensing boards of the payment. 

The physician could wait to apologize until the malpractice insurance company had decided to pay the claim or even until after he had testified in court that he hadn't made an error and the case had been turned over to the jury!  As long as the physician apologized before the jury rendered its verdict, the licensing board couldn't take any action and the Data Bank would have to keep the payment secret. 

The result of the "Sorry Works!" proposal wouldn't be timely and sincere apologies which are beneficial for all concerned; the result would be last minute cynical self-serving "apologies" designed only to keep the physician from bearing some of the possible consequences of his malpractice.  Licensing boards couldn't act to protect the public and the malpracticing physician could lie on applications with impunity, just as they often did before the Data Bank was created -- the fact that physicians often omitted malpractice payments on applications for licensure or clinical privileges is the reason Congress established the Data Bank, so the purpose of the Data Bank would be severely undermined.  In fact even with the Data Bank in place, Data Bank users found that about 9 percent of the time physicians with previous malpractice payments or medical disciplinary information in their records omitted at least some of the events from their applications.  Of course, they no longer get away with it because of the Data Bank, but if the Data Bank is required to keep the information secret, they will once again be able to lie on applications with impunity.  This hardly protects the public!

I believe that injured patients and their families -- and most patient safety advocates have been in one or both of these categories -- highly value apologies.  We want physicians to apologize when the commit errors.  But even more we want to reduce the likelihood that other people will fall victim to errors committed by the same physician or errors of the same type committed by others.   The "Sorry Works!" proposal may result in apologies (or at least cynical self-serving apologies), but it will make it even more likely that other people will be victims too since licensing boards, peer reviewers, and the Data Bank will be prevented from doing their jobs.  

 

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When my 12 year old daughter Leah died due to 100% preventable medical errors, I never recieved an apology or an admission of any error they were aware of.
In the years since, I have accepted the fact that a number of people were responsible for what happened during those 30 hours Leah was in the hospital. And I am the only one who accepts my share of the responsibility. It is a heavy weight to live with. My story is similar to Helen Haskells in many ways. Yet the response from the hospitals and doctors was so different ,it has had a monumental effect on how we each have survived. Helen is my hero, she is the original empowered patient, and her doctors and the hospital supported her in becoming who she is today. An admission of error would have gone a long way in helping me go on with life.

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It was in 1999 A doctor in kings county Hospital, I enter the Adult Clinic , becsuse I was feeling funnyand I taught that I was pergant, they took my blood test an a urine test an when the result came back the doctor sat down an said I had a STD, I said it couldn't be, so she gave me a pills saying thats to help me get better, next few days I was bleeding heavy and I was blawing with pain I couldnt stand straight, I taught I had my period, so I went into the hospital the same day I was having pain an look for the same doctor that saw me..I remeber her last name..(wont mention it here) like I was saying I sat an spoke to her an said "You told me i was not pergnant ...so why im I bleeding heavy for 7days....she said oh my your the one we mix up the blood test, give me ur u rine again to see if you might be pergant, she took it an came back with the result an said your pergant, an you might be bleeding out the baby, she gave me an appointment to take a sonogram to see what is going on, the next day i went into the sonogram an they told me you already bleed out the baby..few days later I still was blawind with pain cuz they left some fetus still inside of me , the never scrap me...I end up in another hospital an spend 3 days in the hospital...I was in sooo much pain so I didnt want nothing to do with hospital perviously, 5yrs later I went to see if I could of sue the hospital, they wipe out all the records of me in January 21 ,1999...

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