Is Apologizing for a Medical Mistake A Wise Decision?

Many healthcare professionals believe that admitting to medical mistakes in the health care setting can result in disaster. The main concern is that any admission of fault may be used against them. Apologizing may require more than just an expression of remorse. Some patients may want an Apology that includes admitting that harm was caused and that the apologizing party is the person that caused the harm. Not all medical professionals are willing to take this leap.

Many professionals will not admit fault for various other reasons. Some reasons are as follows: Admitting to medical mistakes may impact liability insurance; Employers may not want their employees to make disclosures that will affect subsequent litigation; Admitting to negligent acts will affect professional reputation.

Impact on Liability Insurance

Some health care professionals believe that admitting to fault in the health care setting will affect their insurance premiums. This is a legitimate concern. A medical professional who has been sued can expect to have an increase in his or her liability insurance premium. Insurance companies are in the business of making money. Many are known to be resistant when it comes to paying out claims and may choose not to renew an insurance policy. Some Insurance companies will settle claims on a purely economical basis without regard to the impact on the insured’s practice.[1] Many malpractice insurance renewal forms require their insured’s to disclose whether they have knowledge of acts that are likely to result in claims during the insured period. Certain specialties such as Obstetricians/ Gynecologists, Neurologist and Internists are more at risk for law suits than others. Obstetricians/ Gynecologists have some of the highest insurance premiums in the health care industry. According to one research, about 25% of all Obstetricians/gynecologists will be sued during their practice.[2]

As such, professionals who are already in these high risk groups may be hesitant to worsen their situation by admitting to fault or by offering an apology that may trigger a lawsuit or claim.

Risk Management’s Fear of Vicarious Liability

Vicarious liability is a legal principle whereby employers are held responsible for the negligent acts or omissions (failure to act) of their employees. The acts or omissions must occur during the course of employment. Many doctors and Nurses are employees of hospitals, nursing homes and clinics. As such, these types of employers are at risk for claims based on vicarious liability.

Most health care facilities have Risk Management departments that are responsible for handling liability claims. Employees usually contact their Risk Management Department for advice when faced with the possibility of lawsuits. Hospitals, clinics and other facilities may have their own policies in place as to how communications are made to potential litigants. Some professionals believe that risk management departments were not instituted to prevent patient injuries [3].

Risk managers may advise clients not to make any unnecessary discloses. They may also advice employees who want to apologize, to apologize in a manner that does not include admission of fault.

Our legal system is designed in such a way that although defendants are required to cooperate, Plaintiffs are required to prove their own cases.

Admitting Fault May affect Professional Reputation

Another significant reason is that admitting to fault may affect professional reputation. Being labeled a good doctor or a good nurse has significant advantages. Nurse and doctors who are liked and respected by patients and peers are more likely to have successful professional careers. They are less likely to get reported to professional licensing boards. They may also get more promotions and may earn more money in cases where income is determined by patient volume and satisfaction.

Health care workers are fearful of being labeled incompetent and losing the respect of patients and peers. Doctors who settle claims are reported to the National Practitioner Data Bank (NPDB) [4]. Disclosure to the NPDB is accessible by State licensing boards, hospitals and other health care facilities. Payment for claims may blemish records, cause denial of hospital privileges, inability to get contracts with managed care companies and denial of medical staff appointment. [5] Loss of professional reputation may have the same financial consequence as a law suit. For example, a doctor who admits to prescribing the wrong drug, or surgeons who admit to performing procedures on the wrong body part may find that other patients are reluctant to seek their services. Employers may terminate their employment and they may have difficulty rebuilding their careers.

The reputations of the health care facilities are also vicariously effected when employees make medical mistakes. When facilities lose their reputation, they experience market share declines, they have difficulty recruiting and retaining qualified staff. [6] They also have difficulty preserving their legitimacy and professional standing. [7]

An Apology may Prevent A Lawsuit

Many health care professionals believe that Patients are rarely concerned with the legitimacy of claims and are simply looking for law suits. Despite this belief, evidence shows that a large amount of medical errors occur in the health care setting. According to one Harvard study, 30% of a group of 801 doctors admitted that they were “victims” of medical errors. [8] Despite the high incidence of errors, it is a well established fact that numerous patients who are injured usually do not file medical Malpractice claims.

Research also shows many patients who sued their doctors expressed that they would not have done so if the doctor had admitted wrong doing and apologized. Some sued only after concluding that their doctor had misled them regarding the reason for their injuries. [9] Another group of patients sued because there was no answer as to why their family member was hurt or incapacitated and had to retain an attorney to help them find answers.([10] Families also dropped law suits after learning facts during the discovery process that brought them closure. [11]. The Discovery process is a period allowed by law for parties to gather evidence from each side. One Hospital found that it settled more claims and paid out less after it implemented a more workable risk management policy to prevent further occurrences of a particular problem. [12]

Patients expect some showing of remorse after being hurt by people that they trust. There should be no difficulty in expressing remorse. A medical professional may be sincerely remorseful that a patient was injured without believing that the injury was totally preventable or that he or she deviated from the acceptable standard of care.

In order to prove that Medical Malpractice has occurred, the patient with the aid of his Attorney must prove: (a)A duty of care on the part of the defendant to the plaintiff (b)a violation of that duty through a failure of the recognized and acceptable standard of care, and (c) causation of the injury resulting from that failure.

The burden of proof and the increased financial cost of litigating these claims are often tremendous for plaintiffs who may be appeased by a simple apology.

1. Anderson, Eugene., Gold Joshua. Careful Choice can Prevent later problems. Medical Malpractice Law and Strategy: Available at: http://www.hookman.com/health_care_961002.html. (Accessed on 1/13/2014)
2. ‘Who Will Deliver My Baby?’ Ob-Gyns, Patients Push U.S. Senate for Tort Reform. PR Newswire. Available at: http://www.prnewswire.com/news-releases/who-will-deliver-my-baby-ob-gyns-patients-push-us-senate-for-tort-reform-70922707.html
3. Medical errors are hard for doctors to admit, but it’s wise to apologize to patients. Health and Science. Available at: http://www.washingtonpost.com/national/health-science/medical-errors-are-hard-for-doctors-to-admit-but-its-wise-to-apologize-to-patients/2013/05/24/95e21a2a-915f-11e2-9abd-e4c5c9dc5e90_story.html. (Accessed on 1/14/2014)

4. Anderson, Eugene., Gold Joshua. Careful Choice can Prevent later problems. Medical Malpractice Law and Strategy: Available at: http://www.hookman.com/health_care_961002.html. (Accessed on 1/13/2014)

5. Id.

6. Hibbard, Judith H., Stockard, Jean., Tusler, Martin. Hospital Performance Reports: Impact on Quality Market Share and Reputation. Available at: http://content.healthaffairs.org/content/24/4/1150.full. (Accessed on 1/13/2014)

7. Id

8. Mencimer, Stephanie. Casualties of Medicine:Stephanie Mencimer on why the debate over medical malpractice lawsuit misses the point- patient safety. Available at: http://www.legalaffairs.org/issues/May-June-2003/story_mencimer_mayjun03.msp

9. Jonathan R. Cohen: Advising Clients To Apologize 72 S. Cal. L Rev 1009, 1012 (1999)

10. Howard B. Beckman, MD; Kathryn M. Markakis, MD; Anthony L. Suchman, MD; Richard M. Frankel, PhD. The Doctor Patient Relationship and MALPRACTICE. Archives of Internal Medicine 1994; 154: 1367.

11. See also Aviva Orenstein, GENDER AND RACE IN THE EVIDENCE POLICY: APOLOGY EXCEPTED: INCORPORATING A FEMINIST ANALYSIS INTO EVIDENCE POLICY WHERE YOU WOULD LEAST EXPECT IT, 28 Sw. U. L. Rev. 221, 246(1999).

12. Steve s. Kraman, MD. And Ginney Hamm, JD. Risk Management: Extreme Honesty May Be The Best Policy. 131 Annals of Internal Medicine, 1999; 131; 963-965.