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By Reni Gertner
Long island Business News
Friday, January 6, 2006
Say you’re sorry.
Apparently, the art of apologizing is taking hold in the legal world, with many risk managers, lawyers, physicians, public relations specialists and hospital administrators arguing that heartfelt apologies are reducing medical malpractice litigation – and minimizing recoveries even when lawsuits do arise.
“Doctors are told to run away after bad outcomes, and that’s why we have so much medical malpractice litigation,” said Doug Wojcieszak, who founded Sorry Works!, an Illinois-based coalition to promote disclosure and apology policies at hospitals.
Robert M. Higgins, a medical malpractice attorney in Boston added that many of his clients say they wouldn’t have come if “they just accepted responsibility or acknowledged the mistake.”
This is a “hot issue,” said Lancaster, Pa. attorney Jim Saxton, who represents medical professionals and hospitals and has written books about proactive risk management.
While some apology proponents advocate complete disclosure, many attorneys suggest that health care professionals who want to apologize be careful about how much they say.
Ralph C. Martin II, who practices at Bingham McCutchen in Boston, said, “There is a distinction between admitting liability or that you’ve done something wrong, and something short of that which conveys empathy for someone else’s human condition.”
And it’s not just whether someone says he is sorry; it’s also how he says it and whether he means it that makes a difference.
Risk managers generally advocate open disclosure of errors. In the medical arena, this means admitting someone made a mistake, explaining why it happened and determining a reasonable amount of compensation.
If a physician or other health care professional made a mistake, “every patient is entitled to an open and honest disclosure of facts,” said Rick Boothman, chief risk officer for the University of Michigan Health System, which has an apology and disclosure policy. “Some things are clear mistakes, while other things are just bad outcomes despite our best efforts. Either way, we get them the facts.”
But lawyers argue that whether a physician, nurse or health care professional should apologize after a bad outcome – and how much they should say – should be determined on a case-by-case basis.
In general, “Deciding what you want to demonstrate between empathy and responsibility depends on what your knowledge of the circumstances is, what your perceived liability is and what message you want to send to a number of internal and external constituencies,” Martin said.
Saxton said that doctors need to be careful, because apologies could be misinterpreted as an admission of error.
In addition to malpractice claims, attorneys advising doctors should remember that a poorly stated apology could lead to licensing complaints – which can sometimes be more damaging to the client than a medical malpractice claim.
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