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Does saying, ‘I’m sorry’ help?

Tom MortellHas a physician ever made a mistake that harmed you or a loved one? Did the physician apologize? Whether to offer a simple “I’m sorry,” when things didn’t go as planned, has long been the subject of debate among health care providers, their attorneys, and their malpractice insurers.

On one hand, acknowledgments of responsibility and regret, which are the right thing to do in our culture, often go a long way in promoting healing and forgiveness. According to most definitions, an apology acknowledges responsibility for causing a problem and seeks the suffering party’s forgiveness. In the world of health care, an apology shows that the medical provider takes responsibility for his or her actions, respects the patient, and cares about the patient’s outcome. It also demonstrates that the physician is suffering along with the patient, engendering feelings of trust between physician and patient. Consequently, a proper apology can help diffuse a difficult situation and quiet the patient’s anger.

On the other hand, because acknowledgements of responsibility may be admissible in court, they may damage the medical provider’s defense against a malpractice claim, if one is brought despite the provider’s apology. The apology might be key evidence at trial that the provider made a mistake.

In addition, the apology might embolden the patient to file a lawsuit because “the doctor admitted a mistake.” The apology might even violate the prohibition in many malpractice insurance policies against taking actions that could compromise the insurer’s ability to defend the provider against malpractice claims.

Many state legislatures, including Idaho’s, have addressed medical providers’ “should I apologize?” conundrum by drafting and passing what are often called “physician apology statutes.” Thirty-seven states have physician apology statutes.

However, of those thirty-seven states, eighteen states, including Idaho, make a distinction between medical providers’ expressions of sympathy and their admissions of fault. An expression of sympathy may be something of a limited apology, along the lines of “I’m sorry that this occurred,” or “I regret that this happened.” By contrast, an admission of fault may be something like “I take full responsibility for this outcome” or “I made a mistake, I’m sorry, this should have never happened.” In these eighteen states, expressions of sympathy are inadmissible in court, but admissions of fault are admissible.

In particular, Idaho’s apology statute makes inadmissible in court a medical provider’s expressions of “apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence,” including any accompanying explanation, relating to the pain, suffering or death of a patient that arises from “an unanticipated outcome of medical care.” Idaho Code § 9-207(1). However, a medical provider’s “statement of fault” is admissible in court, even if made in conjunction with an inadmissible expression of sympathy. Idaho Code § 9-207(2).

Accordingly, despite Idaho’s apology statute, Idaho’s health care providers must walk a fine line between expressing sympathy and acknowledging responsibility. As a result, many providers understandably struggle with what to say when a patient’s care does not go as planned.

A growing body of evidence indicates that a physician or hospital is less likely to be sued when the physician or hospital takes responsibility for mistakes, admits fault, and fully apologizes to the patient. Patients are simply less likely to go to court if they feel like the health care provider has been open and transparent with them. Often, much more than the harm caused by the health care provider motivates the patient to file a lawsuit. The provider’s failure to communicate openly and honestly magnifies the patient’s frustration with the unanticipated outcome. It is often a key factor in whether the patient files a lawsuit.

I’ve watched clients walk this fine line. In the anecdotal experience of my health care law practice, I’ve come to conclude that, after consultation with counsel and their malpractice insurer, health care providers are better off being upfront with their patients and openly discussing what happened with the patient. In my opinion, litigation is less likely if physicians openly communicate with their patients and take responsibility for their actions. Not surprisingly, doing the right thing often pays off.

Mr. Mortell is a partner at Hawley Troxell and chairs the firm’s health law practice group. He can be reached at tmortell@hawleytroxell.com.



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