Thursday, April 12, 2007

On Doctors Saying They're Sorry

"If you cut, you bleed."

So said a sage surgical colleague of mine. He was referring, of course, to the fact that unfortunate outcomes are part of what we do as doctors. No one is perfect. No invasive procedure without risks and no two cases are alike or medical co-morbidities the same. Doctors who "cut" usually spend significant time explaining the procedure, its inherent risks, and possible outcomes - hopefully good, but sometimes, not so good. Even in the best of hands, unfortunate outcomes do occur.

But as hard as it may be for many to realize, a bad outcome does not always mean that malpractice occurred during the course of a procedure. When unfortunate outcomes occur, I still believe it is appropriate to say you're sorry. Doctors are humans too, after all, and most care deeply about their patients.

Risk managers seem to welcome doctors speaking with patients after a mishap and saying they're sorry.
The wave of "I'm sorry" laws is part of a movement in the medical industry to encourage doctors to promptly and fully inform patients of errors and, when warranted, to apologize. Some hospitals say apologies help defuse patient anger and stave off lawsuits.

A law in Vermont exempts only oral statements of regret or apology, not written ones. Illinois gives doctors a 72-hour window to safely apologize after they learn about the cause of a medical mishap.
But malpractice insurers are not thrilled with the risks inherent to this procedure:
Boston-based ProMutual Group, which insures 18,000 doctors, dentists and health care facilities in the Northeast, warns its clients against apologies that admit guilt -- even in states that have laws protecting doctors who say they are sorry.

It distributes a tip sheet cautioning doctors against uttering the words "error," "mistake," "fault" or "negligence."

"We encourage physicians to apologize about the outcome, not necessarily for any error that may have occurred," ProMutual spokeswoman Nina Akerley said. "Apology is not about confession."
But the real reason risk managers are eager for doctors to fess up early is not to show our altruistic side, I've learned. It's actually about legal statute of limitations.
(Chicago Tribune) On average, the states took 15 to 24 months before a medical injury was reported to insurance carriers. For Illinois and Nevada, it took 67 months on average to close after injury.

"Several factors influence the decision concerning when to file a medical malpractice claim, including statute of limitations restrictions and the need to ascertain various medical, work-related, and pain and suffering expenses," the authors said.
In Illinois, the minute a doctor acknowledges that there was a problem, a hidden clock starts that lasts three years. You see defense attorneys know about the bungled system of justice here in the US, and once an admission of responsibility about an injury occurs, plaintiffs have three years to have the case tried. And given my experience with how long it took a civil suit to wind its way to the courthouse, I can see why there's a push by risk managers to have doctors disclose.


Reference: US Department of Justice Bureau of Justice Statistics: Medical Malpractice Insurance Claims in Seven States, 2000-2004.


Ted F. said...

The statute of limitations applies to the date of filing the complaint, not the date of trial. If the injury is disclosed January 2, 2008, the plaintiff is within the three-year statute of limitations if they file their complaint January 2, 2011, even if the case isn't tried until 2015.

DrWes said...

Ted F.-
Agreed - but realize that the average time to filing was 67 months in Illinois, well beyond the statute of limitations, and over 2/3rds of cases never went to trial - often due to this issue alone. Hence risk managers are pushing docs to come forth early and discuss high risk cases with their patients.

Anonymous said...

Wes, what's your source for that 67 month figure, and the 2/3 dismissed for s/l problems?

That hardly sounds credible, because that many lawyers filing cases after the s/l would mean a lot of legal malpractice claims.

I think you may have misread your stats.

"bungled" system of justice? Which other system that you have experience with would you prefer?

DrWes said...

Anony 09:07 -
I referenced the stats - it ain't my data.

As I reported in my earlier post (also linked above) our "bungled" justice system is not so bad, but the TIME through the system seems excessive, does it not? Certainly, complicated issues take time to resolve, I guess. But in the era of near-instantaneous communication capabilities, the time through the court system takes typically years and permits costs to mount.

Anonymous said...

The clock generally starts ticking either at the time the incident occurs or at the time the patient and/or family should reasonably have known that something happened.

As with anything in the court system, this is often open to interpretation. It is not always immediately apparent when something goes wrong. Sometimes the timeline is fuzzy, as when a delayed dx is involved - does the clock start ticking from the time the patient first complained of X symptoms, or does it start ticking when the final dx was made, or does it start ticking when it became clear that the correct dx was in fact delayed?

There have been cases in which information was withheld from the patient and family, and they were able to successfully make a case that there was deliberate, fraudulent concealment. When this happens, the statute of limitations can be extended... so consider yourself warned.

So to say the statute of limitations is always X amount of years is a thorny question, because it is dependent on how you determine when the clock starts ticking.

My word verification is "alpola." Some new form of dog food, perhaps?

Anonymous said...

Keep in mind that the statute of limitations for minors won't start to run until the minor turns 18, no matter when there's an apology or knowledge of the mistake. That can GREATLY skew the averages, especially where cases brought on behalf of injured minors make up a large proportion of plaintiff personal injury claims due to the higher recoverable damages.