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‘How to’ guide for disclosure and apology

By James W. Saxton, Esq. & Maggie M. Finkelstein, Esq.

Disclosure and apology are hot topics in the health care industry, and there is no sign of the heat waning. In fact, with patient-focused health care initiatives and patient safety initiatives, the authors anticipate that disclosure and apology post-adverse event will only get hotter.

Transparency, benchmarking, hospital and doctor ratings, and pay-for-performance initiatives only make disclosure and apology more significant in the health care industry. Certainly, disclosure and apology are a part of patient satisfaction. By disclosure and apology, we are really talking about communication post-adverse event. Did you talk to the patient and/or family after the unexpected outcome occurred? Did you empathize with them? Did you explain to them, clinically, what occurred and why? When these conversations do not take place after an adverse event, patients and their families may misconstrue the silence as concern or guilt on your part. They also will often seek out a lawyer to fill in the gaps and answer their unanswered questions. It is why disclosure and apology post-adverse event are key risk reduction strategies for physicians.

We are often asked, “How this can be so – isn’t discussing with a patient what happened and saying I’m sorry going to lead to a lawsuit – it’s just like admitting that I committed malpractice. In the past, my attorney has always told me to keep quiet after an unexpected outcome occurs.” The truth is that when done in the right way, communication post-adverse event can actually prevent or help in the defense of a lawsuit. The key is in doing it right. In this article, we will provide you with the tools to get past many of the barriers to disclosure and apology as well as provide you with an introductory “how to” – when it actually happens.

Getting Past Barriers

Below, the authors address the top reasons provided by health care professionals as to why they are fearful of disclosing post-adverse event.

If I disclose, it will heighten the chances of me being sued and increase any award of damages since I admitted fault. As noted above, when done right, communication post-adverse event can reduce the risk of a suit. Research shows that patients want to know about adverse outcomes, including medical errors, and even minor errors. This should not be shocking; after all, patients and jurors are alike. When no disclosure takes place, jurors often hold it against the doctor, and it can impact severity. Further, disclosure and the affiliated investigation may provide the doctor with early information about liability, and in certain circumstances, may be cause for fast-track of claims. However, this should only occur with involvement of legal counsel and a full investigation of the situation.

I would apologize if I knew that my apology would not be used against me in a suit. Many doctors are aware that many states have passed so-called apology laws or laws that provide doctors who say “I’m sorry” after an adverse event with immunity (preventing an apology from being used as evidence of negligence). Doctors will tell us that they will not apologize without one of those laws in place. However, the laws are helpful, but not necessary. Saying “I’m sorry” is simply the right thing to do, and when placed in the appropriate context can benefit the patient, families, and the doctor. Plaintiff counsel have told us that they would never want to introduce evidence into a trial that a doctor apologized – it makes him (or her) look too good! It is really the absence of an apology that angers the jury.

Disclosing a medical error will hurt my reputation and therefore my business. Doctors often fear a negative impact on their reputation if they were to disclose a medical error. However, the PR of an alleged cover-up is far worse. The truth is that proper disclosure prevents misinformation and reduces the perception of a cover-up. When media does desire information about an event, it is important to collaborate to be sure the same, appropriate message is reaching the patient and the public. Many examples are being seen where hospitals are providing the public with information about errors and apologize openly to the community.

If I disclose, I will lose professional liability insurance coverage for the underlying incident if I am sued. Often, professional liability insurance policies include clauses which deny coverage if a doctor hinders the defense of a claim. The perceived fear is that the insurance company will construe an apology to equate to the hindering of a defense of a claim. However, it is why collaboration not only with legal counsel but also with your professional liability insurer is essential from the beginning. Many enlightened professional liability insurers have embraced this concept for good business reasons. Get your insurer involved up front.

Disclosure and Apology “How To”

When an adverse event occurs, what do you do? The primary concern should always be the safety and welfare of the patient. Once the patient care plan is on track, you can consider the appropriate post-adverse event communication. The communication needed will be dependant on what the adverse event was. Was it simply a known complication of the procedure? Was it a true medical error?

When the event is a true complication, it is important to rely on your appropriate pre-surgery communications and documentation. Complications or risks of the procedure are discussed with patients in the informed consent process. Complications are also often documented on the informed consent form (and should be) and in the medical record notes. This drives home the importance of the second generation informed consent. Complications are not errors, and they need to be managed differently than errors.

Saying “I’m sorry” in this context needs to emphasize empathy. Fault in terms of negligence is not appropriate in this situation. Negligence is a breach of a standard of care and a post-surgical complication is clearly not negligence.

However, when a medical error occurs, not only is empathy essential, but also an acceptance of responsibility. We know what patients want after a medical error occurs, and acceptance of responsibility is part of those desires. This type of conversation will require planning, investigation and collaboration. The exact mechanics are not the topic of this article, but you can find more information about this situation in Sorry Works! Disclosure, Apology and Relationships Prevent Medical Malpractice Claims, co-authored by the authors of the present article, together with Doug Wojcieszak.

For both situations, it is essential to have in place an event management program to be your platform for disclosure. Having in place an event management program coupled with a post-adverse event communication policy, will result in a more efficient and more effective post-adverse event result. The event management program provides the framework for immediate action and ensures that all health care providers involved understand their expectations and next steps. Collaborating with the hospital if the event took place at the hospital is important.

These are only the broad strokes of disclosure. Drilling down on the specifics is necessary as well: When do you communicate? Who communicates? And what is the meeting like?

Communicate as soon as possible after the event. Of course, it is critical to ensure that the patient is safe first and put together a plan of care, which can also be communicated to the patient. Set up a communication plan – here is what we know now – it is not once and done – provide contact information/telephone/ and follow-up.

Who should communicate? Most times, it will need to be the doctor – the one with the direct patient relationship. This can be very hard for some doctors, and it is why we recommend training. However, sometimes it will be that some doctors are just not good communicators, so another health care provider with a significant relationship may be a good alternative, when necessary.

Consider the specifics of the meeting: Location? Confidentiality? Atmosphere? Any special needs of the patient and/or family? Who is present? And after the meeting, make sure there is follow-through – do what you have told the patient you would do.

It’s a Job for Patients, Too

Even if you are on-board with the concept of disclosure and apology, it works most effectively when patients are also on-board. Patients need to know from the start that if things “go wrong” that their doctor wants them to return to the doctor with their questions and concerns. We have seen where some practices have incorporated this concept into their informed consent forms. For example:

“In the unlikely event that one or more of the above inherent complications may occur, my physician(s) will take appropriate and reasonable steps to help manage the clinical situation and be available to me and my family to address our concerns and questions.”

Have a discussion with your patient early on in your relationship explaining that you welcome questions and concerns and that includes when a complication may occur or when it is perceived that one occurred. Clearly, if the patient does not return to the doctor, it may leave our doctors without the opportunity to communicate with a patient post-adverse event.

Disclosure, or communication post-adverse event is not easy. It requires planning, collaboration and education. Seek out CME programs on communicating post-adverse event that will also help you to practice communication skills and techniques. In this way, you will be ready and prepared for your post-adverse event communication. Because, when done in the right way, disclosure post-adverse event strengthens the physician-patient relationship, can increase patient safety, and can reduce professional liability exposure

James W. Saxton, Esq. is co-chair of Stevens & Lee’s Health Care Department and Chair of the Health Care Litigation Group. Maggie M. Finkelstein, Esq. is an Associate in Stevens & Lee’s Health Care and Litigation Departments.

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