AAOS Bulletin - June, 2006

Saying “I’m sorry” to patients after an adverse outcome

By Douglas W. Lundy, MD, and Anne Randolph Cox, JD

Case scenario

A 35-year-old man injured in a motor vehicle collision arrives in the emergency department (ED) with an apparently isolated femoral shaft fracture. He is cleared by the trauma service and taken to surgery where you perform an uneventful closed reduction and intramedullary stabilization of his femur fracture. After three days, he is discharged home and allowed to bear weight on his leg.

Two weeks later, he returns to your office, complaining of pain, but you were called out to the ED and missed his appointment. Your medical assistant removed the sutures, obtained radiographs and told the patient to return in four weeks.

When the patient returns, he continues to complain of pain, localized in the groin area. He has severe pain with passive rotation of his hip and is still walking with crutches. You obtain new radiographs and clearly identify a displaced fracture of the femoral neck. To make matters worse, you can see the nondisplaced fracture of the femoral neck on the previous radiographs. As you know, femoral neck fractures can occur concurrently with femoral shaft fractures and may only become apparent during insertion of an intramedullary nail.

Artwork by William R. Loscher, MD

As you explain the need for open reduction and internal fixation of the femoral neck fracture, the patient’s frustration becomes apparent. He asks, “Why wasn’t this found earlier? Will this delay my getting back to work? How am I going to make ends meet? I have a wife and three kids. We live paycheck to paycheck and I haven’t been able to work since this injury!”

Discussion

Most medical school graduates are caring people who really want to ease human suffering and help the sick and injured. Orthopaedic surgeons can quickly relieve pain and correct deformities using well-proven surgical techniques with very reproducible results. Compassionate surgeons would feel genuine sympathy for this patient, but with the current liability crisis, the thought of saying “I’m sorry” creates apprehension. Will saying “I’m sorry” be interpreted as an admission of guilt?

In 1991, California became the first state to pass “I’m sorry” legislation. Since then, Arizona, Colorado, Florida, Georgia, Hawaii, Idaho, Maryland, Massachusetts, Montana, North Carolina, Ohio, Oklahoma, Oregon, Texas, Virginia, Washington and West Virginia have also passed laws that allow physicians to express compassion to patients without this statement being construed as an admission of guilt. In Illinois, similar legislation is awaiting the governor’s signature, and Vermont has case law that provides immunity for apologies.

These legislative efforts are not limited to the state level. A measure introduced in the U.S. Senate last year—S 1784, The National Medical Error Disclosure and Compensation (MEDiC) Act of 2005—would establish a National Patient Safety Database and provide support to physicians to enable disclosure of medical errors. Under this program, medical errors are reported to the patient safety officer of the hospital. If appropriate, the patient and physician enter into negotiations to resolve the situation. The program offers “protection for any apology made by a health care provider to the patient within the negotiation period.”

Two of the stated purposes of this legislation are to “improve the quality of health care by encouraging open communication between patients and health care providers about medical errors” and “reduce the cost of medical liability insurance for doctors, hospitals, health systems, and other health care providers.” The measure has been referred to the Senate Committee on Health, Education, Labor and Pensions for consideration.

Sorry works

The beneficial effect of saying “I’m sorry” is well documented. The “Sorry Works!” Coalition states that apologizing to a patient when an error occurs will decrease the frequency and cost of malpractice lawsuits and result in greater patient trust and satisfaction. Patients are often willing to continue under the care of a physician who has made an error if the patient feels that the physician is genuinely apologetic and wants to make things right.

Many patients file negligence claims against physicians only after they feel abandoned and have no other recourse. By offering genuine sympathy and an apology (if appropriate), the physician often improves the physician-patient relationship and engenders further loyalty in the patient.

The 3Rs Program

Medical liability insurance carriers have recognized the value of apologies and are also addressing this issue. COPIC Insurance, the major underwriter of medical liability insurance in Colorado, started the “3Rs” program in October 2000. The 3Rs—recognize, respond and resolve—encourage early, candid communication between doctors and patients. The program also assists patients who have had unexpected outcomes.

The 3Rs program aims to avoid lawsuits by sincere disclosure and partnering of the physician and the patient to overcome the negative effects of an unanticipated outcome. Physicians must enroll in the 3Rs program before an incident occurs. If an unexpected outcome occurs, the physician contacts COPIC and discusses the incident to determine whether the case is appropriate for the 3Rs program. The physician must not make any promises to the patient or tell the patient about the 3Rs program until COPIC determines whether the incident meets program guidelines. Reimbursement payments from the 3Rs program are not reportable to either the state medical board or to the National Practitioners Data Bank because program guidelines exclude situations that trigger a reporting duty.

The Colorado State Medical Board requires reporting of payments to a patient upon final resolution of an occurrence. Under the 3Rs program, patients never waive the right to sue so no payments are reportable to the state medical board. Because the state medical board requires a report any time an occurrence involves wrong-site surgery or death, occurrences involving either are excluded from the 3Rs program.

Payments following a written demand for payment trigger a reporting duty to the National Practitioners Data Bank. Therefore, an occurrence is not appropriate for handling in 3Rs if the patient or the patient’s attorney has made a written demand for payment.

If the occurrence meets 3Rs program guidelines, the treating physician contacts the patient directly and explains the program’s benefits. Specifically, patients can be compensated for loss of time at $100 per day (up to $5,000 total) and for out-of-pocket medical expenses (up to $25,000). The program does not provide compensation for noneconomic damages.

In COPIC’s experience, many patients are very satisfied with this program, and the doctor-patient relationship is preserved. The patient’s reasonable expectations and requests are often accommodated, and the involved parties have an acceptable outcome to what could have been an unpleasant experience for all. Further details about this program can be found online.

In summary, many adverse interactions between physicians and patients may be avoided with early, truthful disclosure of adverse outcomes and simply saying, “I’m sorry.” This unpretentious act of genuine humility can change a potentially litigious situation to one of partnering to overcome the situation at hand. Legislation at the state and federal levels will protect orthopaedic surgeons so that statements of apology cannot be entered as admissions of negligence or liability. Professional liability carriers are also realizing the benefits of saying “I’m sorry,” and are establishing programs to facilitate this interaction between doctors and their patients.

Douglas W. Lundy, MD, FACS, is a member of the AAOS Medical Liability Committee. Anne Randolph Cox, JD, is general counsel for COPIC Insurance Company.


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