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.

-Wes

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