‘Sorry’ works in malpractice, but honesty and prevention are better

For years it’s been argued apologizing for medical errors would reduce the number of malpractice lawsuits. A comment published in a law journal argues an apology is less important than honesty and a dedicated quality improvement program in reducing malpractice payouts.

Tort reform does nothing to decrease medical malpractice claims because it does nothing to address the basic reason patients sue, according to Richard C. Boothman, chief risk officer for the University of Michigan Health System in Ann Arbor (J Health & Life Sci Law 2009;2:125-159). “Despite the public fascination with the apology component, the real story isn’t that apology reduces lawsuits,” Boothman said. “The real story is that honesty-true honesty-is the first, and absolutely necessary, step toward real quality improvement.”

The key to avoiding a lawsuit has nothing to do with strategy or how good the physician is, but rather with preventing an error, he said. Creating realistic expectations about the proposed treatment, developing tools to help caregivers identify patient injuries before they become claims, and instilling institutional appreciation for the value of early detection of unexpected outcomes, will all help physicians and hospitals avoid lawsuits, according to Boothman.

After an unanticipated outcome occurs, Boothman encourages medical professionals to approach patients and prioritize their needs, then answer those to the best of their ability, explain expectations for follow-up, apologize for mistakes, study the experience for improvement, and monitor future clinical care. That way the error won’t happen again.

If a facility is flexible and constantly evaluating medical practice, errors will become less of an issue because it is adapting itself to a changing environment, Boothman said.

As evidence open and honest disclosure results in fewer malpractice claims, Boothman cites statistics from the University of Michigan illustrating a drop in the number of claims: In 1999 the university received 136 claims; in 2006 it received 61.

Boothman refers to a case at UM in which a young woman developed breast cancer. A primary care physician covering for her doctor advised the woman to monitor the lump in her breast rather than sending her to a mammographer for a workup. A few years later, she developed invasive ductal carcinoma. The woman filed a lawsuit but eventually settled out of court after having a conversation with university officials where they discussed what happened and why the situation arose.

After apologizing, explaining her chance for recurrence was much lower than she thought it was, and offering to tape her story for education purposes, the woman settled the suit for $400,000.

One thing about UM’s situation many other facilities don’t share is UM is self-insured, said Dr. Leonard Berlin, vice chair of radiology at Northshore University HealthSystem, north of Chicago, and a frequent writer on medical malpractice issues.

“It makes a difference because you don’t have any conflicts of interest,” he said. “You don’t have any divergence of interest. The doctor, the nurse, the hospital president-they’re all on the same page, they’re all in the same boat.”

For most hospitals, there are multiple insurers onsite: doctor A has one insurer, doctor B another, doctor C another, and so on, Berlin said. They all play a game of who’s more liable, the radiologist or the internist or someone else?

At Michigan it doesn’t matter whether the radiologist is more at fault than the surgeon because all the money is coming from the same place, the university has sole discretion on how to handle everything.

Besides that fact, the culture of the U.S. is predicated on entitlement: someone made a mistake and now they have to pay for it, according to Berlin.

“There’s mistakes and there’s mistakes and there’s mistakes. We’re talking about big-time when it affects your health. It’s a very personal thing and a very important thing,” Berlin said. “The patient will obviously be upset if a doctor says, ‘I should have been able to diagnose this six months ago. I’m sorry, forgive me.’ The natural reaction is, ‘Forgive you? You cost me my life!’ The patient will be upset and want someone to pay for the mistake, literally.”

There’s a big gap right now between what is the moral/ethical action and what is done in the real world, he said.

Mammography is a prime target for medical malpractice lawsuits. It’s altruistic and innocent to believe after apologizing to a patient he or she will move on and do nothing, according to Dr. Stamatia Destounis, a radiologist at Elizabeth Wende Breast Care in Rochester, NY.

“Saying you are sorry to a patient after a bad result had better be accompanied by an explanation that you are sad she is in pain, or [sad] for her condition, and not that you actually are responsible for it,” Destounis said.