Doctors Are Learning That "I'm Sorry" May Prevent Lawsuits

In recent years, doctors have discovered that a simple apology can have a great effect in preventing malpractice lawsuits. According to the New York Times, Dr. Das Gupta, the chairman of surgical oncology at the University of Illinois Medical Center, mistakenly removed the wrong rib from one of his patients. Instead of using the classic “deny and defend” strategy, he promptly acknowledged his error and apologized to the patient. While the patient did accept a settlement from the hospital, she decided not to sue. Details, inside…

According to recent studies, 1 out of every 100 hospital patients receives some sort of negligent treatment and only 30% of those errors are disclosed to patients. The traditional thinking is that any admission of the doctor’s guilt invites litigation. However, some medical centers such as Johns Hopkins and Stanford are trying the apologetic approach. The article says,

By promptly disclosing medical errors and offering earnest apologies and fair compensation, they hope to restore integrity to dealings with patients, make it easier to learn from mistakes and dilute anger that often fuels lawsuits.

Malpractice lawyers say that what often transforms a reasonable patient into an indignant plaintiff is less an error than its concealment, and the victim’s concern that it will happen again.

Despite some projections that disclosure would prompt a flood of lawsuits, hospitals are reporting decreases in their caseloads and savings in legal costs. Malpractice premiums have declined in some instances, though market forces may be partly responsible.

The University of Michigan Health system was one of the first to experiment with “full disclosure” and their number of existing claims and lawsuits dropped from 262 to 83 from 2001 to 2007. Richard C. Boothman, the medical center’s chief risk officer said, “Improving patient safety and patient communication is more likely to cure the malpractice crisis than defensiveness and denial.”

We would prefer if medical malpractice never happened but obviously that will never be the case. It’s encouraging to see that the medical community is finally becoming aware that successful conflict resolution depends on disclosure and cooperation from both sides. While this approach may not stop mistakes from happening, it will at least, help us to feel more empowered when they do.

Doctors Say ‘I’m Sorry’ Before ‘See You in Court’ [New York Times] (Thanks to Pauline!)
(Photo: Getty)

Comments

Edit Your Comment

  1. (I teach on this topic in medical ethics)

    Another big push is to put safe harbor protections in state law so that doctors CAN disclose and apologize without it being an admission of negligence, or that the disclosure and apology are non-admissible. (And evidence must still be dug up the traditional ways.)

  2. Dr. Das Gupta, the chairman of surgical oncology at the University of Illinois Medical Center, mistakenly removed the wrong rib from one of his patients

    I am SO sick of doctors playing God.

  3. speedwell (propagandist and secular snarkist) says:

    @Ash78: ROFL@: The theological ramifications. The sociological ramifications. The idea that women might be different if God had picked the “correct” rib. The whole idea of God thinking, “Hmmm, if I say I’m sorry, I might not get taken to the cleaners in malpractice court.” The whole idea of God saying, “I’m sorry.” (The whole idea of God, actually.)

  4. @speedwell: Could God create a woman so hardheaded that even HE would have to concede every argument?

    These are the questions that we all must struggle with.

  5. Dashrashi says:

    I’m torn on the safe harbor laws. If you apologize, knowing that there won’t be culpability for the thing you’re apologizing for, is that really an apology? Isn’t the point of an apology to admit culpability and welcome the consequences of your actions? If you protect doctors from those consequences, it’s not really an apology, I think.

  6. stacye says:

    @Dashrashi: The consequence of their actions is shown by the hospital compensating the patient, without going to court.

    If someone screwed up on me, the first thing I would want is that they acknowledge they screw up, and then they tell me how they are going to fix it. If the doctor immediately goes on the defensive, and completely denies any wrong doing, then that doesn’t help me, the doctor, or the hospital.

    This sounds like a step in the right direction.

  7. fearuncertaintydoubt says:

    I have been saying this for years. It’s shameful that it has taken decades for the medical community to get over their arrogance on this. Be honest, and people are very forgiving. How offensive is it for a patient is to be sitting there knowing that something went wrong, and being confronted with a hospital administrator giving trying to get them to waive liability? Or being stonewalled?

    People only became sue-happy because hospitals and doctors wanted to hide behind a curtain of infallibility. But — DUH! — when you pretend to be infallible, it makes the fall harder when it happens.

    The people who would predict that lawsuits go up because of honest disclosure are

    1) sleazy lawyers who would take advantage of any admission of error as a weakness and exploit it, and assume everyone else would as well

    2) sleazy lawyers who know that it will reduce lawsuits and are using FUD to stave off any shrinking of their revenue stream

    Lawyers never had to be the answer to medical errors. Ego-maniac doctors and bureaucratic indifference made it that way.

  8. Parting says:

    @Ash78: Most often, the mistake is committed long before the surgery. So it’s not exclusively doctor’s fault, several members of the hospital’s staff are involved. And like in domino, 1 small mistake in the beginning can create a major screw-up.

  9. Heresy Of Truth says:

    As a nurse, I have seen this in action. Here’s my two anecdotal examples:

    1) The patient was obese, and had a rupture somewhere in her intestinal track. She got a colostomy. The doc sent here home, where I dealt with her dressing changes. It was obvious from the first minute that something was critically wrong. She was dehiscing (Never google dehiscence for images!) The doc refused to acknowledge anything was wrong, and kept telling the family that they were just being worry worts. We, the nurses, advised that she go into the ER immediately. Her wounds completely unzipped within two hours of being back at the hospital.

    They sued. Why? Because the doc kept ignoring it, and refused to even acknowledge there was a problem. When it was finally obvious that there was an issue, he denied any and all possible wrong doing. The family didn’t even think about suing, until he brought it up with a lot of snark.

    2) A little old lady went in for a routine colonoscopy. She had a punctured bowel, and it wasn’t noticed. A week later she collapses in her garden, unconscious. She wakes up at the hospital with a colostomy bag, and a massive open wound. Not terribly unlike case #1.

    The difference is that the doc came right in, said what happened, and reassured her that she was going to be alright. He was earnest, and forthright about the whole thing. Her family, and her, were all grateful that the doc was fixing everything.

    Apologies make a lot of difference. I wish more docs would believe that.

  10. forgottenpassword says:

    How is an apology going to pay for my brain-damaged kid’s lifetime medical treatment?

  11. @Dashrashi: Safe harbor for apologizing doesn’t remove legal liability (or disciplinary action by your hospital/state med board); it merely says it’s not admissible as evidence of negligence.

    What it sort-of does in practice is separate “doctor dealing with patient” and “hospital lawyers dealing with patient lawyers.” Often the doctors do feel bad and WANT to apologize but are prevented by the hospital attorneys. Sometimes there isn’t even an error, but the hospital won’t let doctors even say, “I’m sorry the outcome wasn’t what we’d hoped.”

    It’s not unusual for doctors to actually get kind-of weepy or just totally break down into tears while apologizing for the really catastrophic errors. I think they’re pretty sincere!

    Frequently a patient wants to know what happened, who’s responsible, and whether it will happen again, and the hospital will stonewall all that information for liability reasons (which also means that it can be difficult to identify and fix problems internally). Safe harbor lets doctors address those issues with patients, and often times patients aren’t interested in suing once they have that information.

    (It also typically leads to quite a bit more settlement — patients often sue when offered a generous settlement package because a) they haven’t gotten information and b) they want to punish the hospital and doctors which are behaving callously and uncaringly towards them. When there’s a sit-down session and an apology, the patient feels satisfied on both counts and is typically willing to take a settlement that covers medical expenses and doesn’t require five years of litigation.)

  12. BlackFlag55 says:

    Working my way through University I was a Surgical Technician … the guy in charge of instruments at the elbow of the surgeon. Let me tell you, even at 18 with no experience in the Big World I knew something was dead dam wrong in attitude and viewpoint. Close calls, mixups, whoops! happened every week. I closed a patient once (appendectomy) when the surgeon who arrived in the middle of the night was too inebriated to finish the job. The rest of my war stories are not fit for this public forum. Little Napolean Syndrome was the rule, not the exception.

    And Heresy … boy, have I got a bowel-reconstruction tale on a mentally-challenged 400 pound 16 yo male. But not here.

  13. sardonumspa says:

    I am on board with the general idea of taking responsibility for one’s actions.

    We are human, if a doctor makes a mistake but admits it, and along with the hospital, does whatever they can to make it right, what need is there for a lawsuit? People want to sue when they feel they have been wronged. And lying about the mistake and actively trying to cover it up are perfect examples of how to wrong a person.

    I am for creating a safe way for a doctor or hospital to admit wrongdoing, but I don’t think that info should be inadmissible in court. What’s to stop a hospital from admitting a mistake, then refusing to take responsibility?

    “Yeah, I left a glove in your abdomen, but since you never had an x-ray prior to the operation, you’ll never be able to prove it. BTW, my admission is not admissible in court.”

    That would just make things worse, knowing the truth, but having to break down stonewalling tactics to prove it. Not all mistakes may be so easily explained.

  14. sardonumspa says:

    You may want to read this article in the City Pages. It tells the story of a young boy who became mysteriously ill, and his mother who had to battle stonewalling tactics to get him cured.

    In the end, he had a case of tuberculosis that went untreated for better than a year; time that was wasted fighting the medical establishment.

    As a result, he may well have permanent neurological damage.

  15. sardonumspa says:
  16. Pluckyduk8 says:

    This is nothing new….I was taught this in medical school.

  17. mgy says:

    I was always under the assumption that companies (doctors included) were never supposed to apologize, because apologies can be used as admission of guilt, and there’s no way of getting a possible suit thrown out if you apologize.

    That’s the way it works with apologizing to police officers, anyways.

  18. @sardonumspa: My husband does medical malpractice, and it doesn’t really work that way. There’s still plenty of discoverable evidence of negligence. The doctor can still be deposed or forced to testify. All that safe harbor does is make it so that the doctor can apologize to the patient and THAT SPECIFICALLY is not an admission of negligence.

    We already have other exceptions in the law where certain kinds of statements are not admissible as admissions of guilt or negligence. This isn’t really any different and it doesn’t really knocks the wheels off the cart.

  19. Jevia says:

    I know of an elderly patient that died in a nursing facility. There was a mistake that had been made, but it was questionable as to whether that mistake actually caused or contributed to the death. The next of kin kept asking what happened, but the facility ignored them, so they sued. I’m sure if the facility had explained what happened, even with the mistake, I doubt the family would have sued, or even if they had, the family would have agreed to settle for far less than they did.

    An apology can go a long way, but many medical facilities are so scared of litigation that they tend to just bury their head in the sand and hope it will go away. Other places don’t mind the litigation, confident they will win, but it still costs tens of thousands of dollars in attorney fees that cause insurance companies to just increase the premiums. And we wonder why health insurance is so expensive.

  20. Norcross says:

    Saying sorry is nice and all, but the malpractice situation as a whole is pretty awful. Recently, my wife’s OB/GYN office asked her to sign a binding arbitration agreement that not only had her waive her right to use, but waived MY right to sue as well. While I doubt it would hold up in court, that’s pretty horrible regardless.

  21. Buran says:

    @Ash78: I read that, went “Huh?” then it hit me and I (mentally; I’m at work) cracked up.

    That said, I’ve been saying for a long time, including on this site a few times, that being polite goes a long way to stopping anger, and that if companies would just own up to their mistakes, they might not get sued a lot. I would usually get people getting in my face saying “That’s just an invitation to be sued”.

    Now you can read for yourself why I was saying that instead of having to search the web for the information I’d already seen that led to those comments.

    Why can’t common decency be more common? I’ve screwed up before, and admitted it, and it’s just the right thing to do.

  22. SOhp101 says:

    @mgy: True, but at the same time the unintended effect of not apologizing is that it causes major problems for the victim to actually find out what happened to him/her. Major frustration ensues and in the end there is so much red tape for the patient to go over the end result is a vindictive attitude.

    Ultimately, the sad part is that the doctor stops seeing the patient as a patient and instead as a ticking lawsuit time bomb.

  23. Buran says:

    @Norcross: I sure hope you told them that you were going to go somewhere else after being treated like that.

  24. @Norcross: If you think that’s bad, my husband WRITES some of those things you have to sign at the doctor’s office (HIPAA disclosures, etc.) for the local hospitals … and when he’s a patient, refuses to sign them. :P

  25. Buran says:

    @SOhp101: Exactly. You reap what you sow; if you anger someone, naturally they’ll strike back. Best take a better attitude, and you’ll get a better one in return.

  26. katylostherart says:

    no one likes dealing with anyone who thinks they are infallible, especially when it’s with an honest mistake that ends up killing you. being egotistical and expecting someone to just agree with you when it’s their body and their life at risk is ridiculous. why is that so hard for the medical industry to understand in general? maybe it should be required that medical malpractice lawyers have an MD as well.

  27. the_wiggle says:

    @Norcross: that would worry me a great deal as to me it implies they’ve a great deal to hide regarding prior problems. if possible, you may want to find a different ob/gyn.

    @Eyebrows McGee: does he still get the treatment he needs? i ask as it’s usually implied & sometimes stated outright that no signing means no treatment.

  28. ARP says:

    @Eyebrows McGee: I think you’re right. Often hospitals stonewall people who want answers. They get frustrating and have to escalate by getting a lawyer to get something done. It’s very similar to many issues presented by consumerist. Many hospitals seem to ignore you or your problems unless you escalate. So its part uncaring corporate hospitals and part sleazy lawyers. Combine the two and you have a situation where everything is resolved by lawyers. Lawyers have their purpose, but in this case they hold back the settlement process.

  29. @the_wiggle: What he usually does is cross out the parts he disagrees with and then signs, and then we argue in the waiting room for 20 minutes about what the proper consumer response is to a boilerplate if you don’t want it to be enforceable in court, and then I finally snippily ask him why he writes it that way if he doesn’t want to sign it and he looks at me like I’m an idiot and points out it’s to protect the hospital, which typically leads into a heated argument about standards of professional responsibility. Which is generally why lawyers shouldn’t marry other lawyers.

    (To be fair, most of what he crosses out is in the HIPAA law itself, which he can’t do anything about.)

    All of which is to say, typically they don’t care WHAT you put on it, as long as there’s some gibberish in the signature line.

  30. johnva says:

    I really think the lack of apologies for sincere mistakes probably has more to do with lawyers and insurance companies than it does with doctors being arrogant. While I’m sure there’s some of that, I would also bet that a lot of the time the doctors have been advised by lawyers to never communicate anything that could be viewed as an admission of guilt.

  31. mzhartz says:

    So, doing the ethical thing makes situations come out better? Who woulda thunk it?

  32. mthrndr says:

    Malcolm Gladwell discusses this at length in one of his books, The Tipping Point or Blink, I can’t remember which one (they’re both worth reading).

  33. Rachael says:

    I was shocked when, several weeks ago, my father’s doctor came in to see him and apologize for nearly killing him. She’d given him too much of a new medication and the next day after taking it he could hardly breathe and had to go to the ER. We were all shocked; a doc who APOLOGIZES? What next!

    And johnva’s right, the lack of apologies comes from our growing fear of lawsuits. It’s not that docs don’t honestly care a little or that their ego always prevents them from apologizing (though I wouldn’t put it past some), it’s that they’ve been advised not to admit guilt in a bad situation.

  34. P_Smith says:

    @forgottenpassword: How is an apology going to pay for my brain-damaged kid’s lifetime medical treatment?

    It won’t, *but* an apology plus a one million dollar settlement (which is enough to care for most anyone for a lifetime) is a lot cheaper than a $50 million lawsuit. Honesty would do so much more than trying to hide things.

  35. katylostherart says:

    @Eyebrows McGee: does crossing out bits of a waiver without a witness actually do anything? i mean i can crisscross bits out of a lease but unless the landlord initials them as well i don’t see how it makes a real difference.

  36. @katylostherart: That would be the heart of our ongoing disagreement about how to deal with boilerplates. :D And different courts have ruled differently.

    A lease is a little different, though — you have the opportunity to sit down with the landlord or his rep and they can and may actually change lease terms for you. There are real people agreeing on real terms. In a “true” boilerplate situation, the person giving you the contract has no power to approve any changes, and your choices are either to agree to the contract, or forgo service. You have no opportunity to discuss terms or change anything. One school of thought is that you should just sign them and assume anything you agree to will be declared unconscionable; another is that you should cross out terms you disagree with and the company giving you service after that will be declared the company’s acceptance of your changed terms, etc. Courts have handled it both ways, but the root of the problem is that it’s not really a CONTRACT, as you have no opportunity to dicker terms and the person presenting you the contract typically doesn’t have the power to change it or even accept it under traditional contract law, so it probably needs its own set of law.

  37. Raignn says:

    You’d be amazed how much people are willing to forgive if they are given an honest and sincere apology.

  38. johnva says:

    @MumbletyEmma: My dad is a doc. He deals with a lot of high-risk surgeries. And he feels terrible if someone dies under his care even if there was truly nothing he could have done. Doctors are people too, and lot of them (not all, unfortunately) go into the field because they want to help people. I think when they make a bad mistake, it probably bothers most doctors a lot. It’s sad that our adversarial legal system has set things up so that doctors are afraid to show human decency that they sincerely feel towards their patients. Of course patients should be compensated for injuries. But my dad has told me that some malpractice liability insurance companies will actually not pay if the doctor admits guilt. Disgusting.

  39. People are most likely to sue when they are angry. Not hurt, or when their rights or violated. Angry. Keeping someone from getting angry, regardless of the setting, is always the best policy.

    That said, I have found that I have a much more healthy expectation of the quality of my health care when remembering that Doctors = Auto mechanics. Just because doctors are dealing with human life doesn’t mean that they are any better at diagnosis and repair than JimBob.

    Take care of yourself; nobody’s looking out for you (not even O’Reilly).

  40. nsv says:

    @Eyebrows McGee: Bullshit. If a doctor is negligent, I can’t think of one good reason to protect him. But then, I’ve got a broken sternum that was diagnosed as “panic attacks” for four months, so I don’t have a lot of sympathy.

    My doctor’s apology went like this: “Oh. Can I get a copy of this?” (The CAT scan report.) My next appointment was made, no other mention was made of the error, then a week before the appointment I got a call telling me that my appointment was canceled and I would not be returning to that doctor.

    A simple “I’m sorry” would have dissipated a lot of the anger that was transmitted to my lawyer.

  41. johnva says:

    @nsv: Here’s a good reason: they’re human too, and no human can be expected to never make a mistake. And if we punished every doctor who ever made a mistake with $50 million judgments, there would soon be no doctors and healthcare would be totally unaffordable. There needs to be some balance beyond just “doctors need to be punished harshly for ever making a mistake”. I’m not saying patients should not be compensated for malpractice. I’m saying that maybe an apology shouldn’t be seen as license to go for the lottery jackpot.

  42. HeartBurnKid says:

    A simple “mea culpa” lets us start seeing doctors as human beings and not as money bags? Imagine that.

    I think that a lot of the problems with our society have a lot to do with the dehumanizing way we’ve come to treat each other. Everybody in the world sees everybody else as something less than human: as a demographic, as a liability, as a target, etc. It’s a sad state of affairs.

  43. katylostherart says:

    @Eyebrows McGee: but there’s nothing really inherent in forming contracts that says you can change terms before them. yes, you set terms, they set terms, an agreement is reached. but there’s nothing illegal (although sometimes unethical) about a service being refused because terms are non-negotiable. i mean, that’s the what the term non-negotiable was made for. just because you have no opportunity to dispute the terms prior to signing doesn’t make it less of a contract. it just makes it a non-negotiable contract. failure of either party to abide by the terms of a non-negotiable contract is breach of contract. if the terms in the contract are legal but non-negotiable, it doesn’t make the contract any less valid once signed.

  44. @katylostherart: Sort-of. We’ve gone a ways off topic here. But generally when one party is in a position of power such that they can force the other party to agree to ALL their terms without the other party having any power to make terms of their own, that starts crossing into territory involving coercion.

    The whole idea of contracts is that they ARE negotiable and are negotiated between equals (prior to signing). If the terms are not negotiable, or if one party is to weak relative to the other party to be able to negotiate, it starts to fall into questionable areas of contract theory. Under some theories of contract law, having no opportunity to dicker the terms makes it not a contract at all.

    Just because there are a zillion boilerplate “contracts” out there calling themselves contracts doesn’t mean they’re all legitimate contracts. :)

    Anyway, it’s likely that that kind of contract has become so common that we need a separate set of laws to govern them. It’s utterly insane to litigate a cell-phone contract (for example) under the theory that both parties entered as equals into a negotiated agreement, when it’s absolutely and utterly clear that’s not true, never happened, never will happen, and that therefore laws that help us decide what to do with an equal-party negotiated contract have very little bearing on the cell phone contract. And it’s exactly this problem that creates a lot of the problems we see on this site with unconscionable contracts that screw consumers, that look nothing whatsoever like equal-party negotiable contracts when they’re made, but are treated like equal-party negotiable contracts when they’re litigated.

    Since it would be impossible for every cell phone user to negotiate an individual contract with the company, we probably need a set of consumer laws that govern contracts of adhesion and set out what’s allowable and what isn’t, instead of pretending like they’re equal-party negotiated contracts.

  45. nsv says:

    @johnva: I’m thinking there were two possible outcomes to my particular situation.

    1) The doctor could have said “When I gave you that diagnosis I didn’t fully understand the nature of your injury. Now that I do, let’s revise our plan of treatment.” My reply would have been “That sounds wonderful, I’d like to address the problems I’ve been having for months.”

    2) The doctor could have said “Oh,” stuck the paperwork in my file, and had his staff tell me to get lost.

    Which one of those sounds like a positive approach and possible solution to a bad situation? Which one sounds like a doctor familiar with my injuries taking charge of my treatment and trying to find solutions?

    Which one sounds like it would piss me right off and cause me to get an attorney to document all of the bullshit that’s been happening?

    He’s a human being. I get it. I make mistakes too. I learn from them and move forward. He refuses to admit it and drops me, leaving me to find another doctor who wants to step into a potentially volatile situation and start treating old injuries.

    Thanks, doc.

  46. Angryrider says:

    It’s better to be humble than to be a dick.
    Isn’t that easy?

  47. mizmoose says:

    I remember reading an article about this in Time or Newsleak or one of them ages ago, at least 6 or 7. I remember thinking about it when I was in the hospital with an infection that nearly cost me my leg (as in, they thought they were gonna have to chop it off). My “doctor”, over the previous 2 months, kept insisting I really didn’t have an infection (because the skin wasn’t broken). By the time I wound up in the hospital it took them 3 days to find an antibiotic that would work.

    Said “Dr.” came to see me, once, for about 30 seconds, and said, “Gee, I guess I was wrong. Sorry.” and left.

    I didn’t sue her for malpractice, but I sure should have. My leg is permanantly hosed.

  48. katylostherart says:

    @Eyebrows McGee: we could really just solve the problem by requiring everyone not be a prick. where’s ann landers when you need her?

    dear abby for pres ’08.

  49. katylostherart says:

    @Angryrider: but it’s easier to be a dick than be humble.

  50. CyberSkull says:

    Well, DUH! A quick and sincere apology for wrongdoing in most cases will calm down the offended party. Most people just want an acknowledgement of wrongdoing in the first place and honestly apologizing can help to alleviate bad feelings.

  51. P_Smith says:

    @johnva: My dad is a doc. He deals with a lot of high-risk surgeries. And he feels terrible if someone dies under his care even if there was truly nothing he could have done. Doctors are people too, and lot of them (not all, unfortunately) go into the field because they want to help people.

    He’s a rarity.

    I read an opinion column once where a doctor said other doctors are told in US medical schools not to become General Practitioners because it would “ruin their career”. The writer suggested that doctors today are being pushed in medical schools to think of profit and revenue, not the general well being of the populace.

  52. nichomiz says:

    So being open and honest with people actually gets their buy in? Crazy talk like that belongs in the funny papers, guys.

  53. bms says:

    Interesting strategy, be upfront, honest, and take responsibility for your own mistakes. Novel.

  54. Corbin123 says:

    @katylostherart: What if you strike out the part about the terms being non-negotiable? ;)