Doctors—Apologies May Help

Physician's Money Digest, December15 2004, Volume 11, Issue 23

You learned the concept in kindergarten—when you hurt someone,you say you're sorry. Anapology may not have always solved theproblem, but it usually helped.

Now it's several years later and you'refaced with a potential lawsuit from a patientwho has experienced a bad outcome,and your malpractice lawyer says, "Don'tapologize. Instead, you should defend anddeny." This is the traditional responsewhen malpractice litigation looms.

Some malpractice reformers say thatan apology may be the better way. Openand honest physician-patient communicationshould include an apology when amistake is made, they say, which is an attitudethat runs counter to the traditionalview that admitting a mistake can openthe door to a malpractice suit. In fact, thereformers believe, apologies can lowerthe number of malpractice suits. Somehospitals that have incorporated the ideainto their policies have results to prove it.

Does It Work?

For the past 2 years, the University ofMichigan Health System has been urgingdoctors to apologize when an error ismade. So far, the results have been impressive—malpractice suits and notices ofintent to sue have been cut in half, andannual attorney fees have been cut by66%. Other prestigious hospitals acrossthe country, including Baltimore's JohnsHopkins Hospital and Boston's Dana-FarberCancer Institute urge doctors to admit mistakesand apologize for treatment errors.

In the Veterans Administration (VA) system,an honesty policy, in which patientsare told when mistakes are made and victimsare compensated, is policy. The trendgained traction when a VA hospital inLexington, Ky, adopted a say-you're-sorrypolicy in 1987 after losing two big malpracticesuits. Despite the break from traditionalprocedure, the hospital's liabilitycosts eventually fell below those of comparableVA hospitals and others followed suit.

The trend is growing. Courses in howto talk about treatment errors and apologiesare now mandatory in some medicalschools. Some malpractice insurers arealso looking at whether an apology canstave off a potential suit. Even malpracticeplaintiff lawyers think it can. It's muchharder to make a winning case, they say,when the other side has already admittederror and apologized to the patient.

Apology Plus

Some studies have shown that patientsvalue an apology but feel entitled to compensation,so some insurers are experimentingwith a double-barreled anti-malpractice-suit weapon—an apology plus upfrontcompensation. One insurer foundthat a strategy of an apology coupled withcompensation can be a potent malpracticedeterrent. Doctors report any injuries orcomplications to the insurer, whichresponds to the patient within 72 hourswith an offer to cover lost wages and anyadditional medical expenses. The approachis reducing the insurer's overall number ofclaims and cutting the average payout.

Advocates point out that, although itincreases the number of settlements, itreduces overall costs, since it replaces million-dollar jury awards and drawn-outlegal fights that cost millions in attorneyfees, compared with upfront compensationthat can cost just thousands. In oneinsurer's say-you're-sorry program, theaverage claim cost is $4300, compared withan average of $52,000 for all claims andlawsuits against the firm in the past 5 years.

Supporters maintain that most patientsare happy to get a fair settlement quicklyrather than file a malpractice suit and waityears.