Tuesday, November 6, 2018<\/span> <\/p>\n<\/p><\/div>\n<\/p><\/div>\n<\/div>\n Physicians typically recall, with stunning clarity, the moment a patient\u2019s treatment went wrong.\u00a0 Following an adverse event, physicians often are tormented by competing desires to apologize and instincts to forge ahead without acknowledgement. A patient\u2019s decision to file a malpractice action may be triggered by the physician\u2019s response to a problem \u2212 or lack thereof.<\/p>\n The Washington Post<\/em><\/a> highlighted contrasting tales of medical errors in which two patients suffered devastating consequences during surgery. Frustrated by a \u201cwhite wall of silence\u201d preventing her health care providers from articulating more than \u201c\u2019things didn\u2019t go well,\u2019\u201d the first patient desperately committed to finding truth at all costs. In stark contrast, following his surgeon\u2019s immediate explanation and apology for an error that rendered the second patient quadriplegic, the patient engaged in productive discussions with risk managers. The patient\u2019s needs were met and his attorneys negotiated a confidential settlement without litigation.<\/p>\n Apologies may decrease feelings of frustration<\/a> and anger that drive some plaintiffs to file lawsuits. A study published in the Journal of Patient Safety and Risk Management<\/em><\/a> found that hospital staff and doctors willing to discuss, apologize for and resolve adverse medical events through a \u201ccollaborative communication resolution program\u201d experienced a significant decrease in the filing of legal claims, defense costs, liability costs and time required to close cases. In 65% of the reported adverse events, no medical errors occurred. Events with medical errors were resolved by apology alone in 43% of the cases. Similar programs have cut the number of malpractice lawsuits and yielded dramatic litigation cost savings. In November 2017, consistent with studies demonstrating that resolution programs provide \u201can effective way to learn from medical errors and near misses, enhance patient safety, and improve the liability system,\u201d the American Medical Association<\/a> expressed support for this pre-litigation option.<\/p>\n The practice of defensive medicine may create a perception of indifference as patients grapple with the impact of adverse outcomes. The \u201c\u2018deny and defend\u2019 model\u201d has raised concerns due to expense, lack of transparency and error perpetuation. Modern programs aim to avoid litigation through prompt error disclosure, apology and compensation. Benefits of disclosure may include increased transparency, medical cultures supportive of clinicians facing adverse events, and enhanced patient safety due to discussions driven by acknowledgement and examination of errors.<\/p>\n \u201cApology statutes<\/a>,\u201d enacted in the majority of states, evidence legislative efforts to reduce medical liability, malpractice actions and related litigation expenses. Many states have changed laws \u201cto exclude expressions of sympathy, condolences or apologies from being used against medical professionals in court.\u201d Courts have addressed the admissibility of physicians\u2019 statements, pursuant to \u201cI\u2019m Sorry\u201d statutes, through the interpretation of statutory language or a focus on distinctions between \u201capologies\u201d and \u201cadmissions of fault or liability.\u201d See<\/em> Stewart v. Vivian<\/em>, 151 Ohio St. 3d 574 (2017); DeBussy v. Graybeal<\/em>, 2016 Del. Super. LEXIS 616; Honey v. Bayhealth Med. Ctr., Inc.<\/em>, 2015 Del. Super. LEXIS 28; Strout v. Cent. Me. Med. Ctr.<\/em>, 2014 ME 77; and Lawrence v. Mountain Star Healthcare<\/em>, 2014 UT App. 40.<\/p>\nBenefits of Apologies<\/strong><\/h3>\n
Advice of Counsel<\/strong><\/h3>\n
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