Risk Management

Don’t Be Afraid to Say You’re Sorry

By Paul Weber, JD,

OMIC’s vice-president of risk management

Digest, Spring 2001

Poor patient outcomes will occur during the career of even the most careful and skilled ophthalmologist. A long-standing debate in medicine concerns whether an overt statement of regret by a physician for a poor medical or surgical outcome could be perceived as an admission of guilt and catalyze a malpractice claim by the patient or be used in court as evidence of liability. But several studies and surveys show that a physician who sympathetically communicates and responds to a patient who has a poor outcome may actually minimize the risk of the patient filing a lawsuit.

Q Is an apology or expression of regret appropriate if a patient experiences a “known risk” of a procedure?
A One study found that more than 50% of malpractice lawsuits are precipitated by the physician’s unwillingness to spend time with the patient and failure to communicate effectively with the patient.¹ An expression of regret is not an admission of fault or liability. A statement such as “I regret things didn’t end up the way we had hoped” or “I’m sorry things didn’t come out the way we had planned” conveys disappointment with the outcome but not the treatment itself. Avoid confessional or self-incriminating statements such as “I guess we blew it,” which focuses on the physician’s concerns about his or her performance and not on the patient’s concerns about the injury or loss.

Q What else can I do to minimize my risk of a claim when a patient has an adverse outcome?
A Four common complaints were identified in deposition transcripts of patients who sued their physician following a poor outcome: the physician deserted the patient, delivered information poorly, devalued the patient’s views, or failed to understand from the patient’s perspective.² Following a poor outcome, set aside ample time to meet with the patient and family. Even though the outcome may be a known complication or side effect that was discussed before the procedure or treatment, assume the patient has only a vague understanding or recollection of the information provided at that time. Come prepared to review the same information now in small, easily understandable chunks. Do not delegate this responsibility as this gives the impression that you are avoiding or are indifferent to the patient’s concerns. Making time for the patient is probably the most effective way to show your concern.

Q How should I document these conversations?
A After explaining the nature of the poor outcome and the steps to remedy it or to help the patient adjust to a permanent loss, it is important to document that the patient appeared to understand and had all questions answered. If you spend a significant amount of time with a patient, document how much (“spent 20 minutes with patient’s family reviewing clinical outcome of surgery”). Recollections often fade as the amount of time actually spent counseling a patient if it is not in the record. Using the patient record to convey and document opinions that a poor outcome was the result of an error or omission by another provider will not help the patient and may reflect poorly on the person placing the blame. Contact OMIC to discuss how to keep confidential, privileged record of the chronology of events.

Q Should I waive my fee or refund money to a patient with a poor outcome?
A This issue has been addressed in previous risk management articles that can be accessed on OMIC’s website, www.omic.com.^3,4 Contact Paul Weber at (800) 562-6642, ext. 603 or pweber@omic.com to discuss your options.

Q Can an apology or statement of regret be used as evidence in court?
A In most states, any discussion with a patient, including expressions of sympathy, can be used as evidence in court. Only a few states, such as California, have ruled it inadmissible to bring into evidence a benevolent gesture or expression of sympathy relating to the pain or suffering of a person involved in an “accident,” including medical incidents. No two situations or patients are alike so there will never be one foolproof approach to communicating with a patient who has has a poor outcome. That said, most patients want an ophthalmologist to recognize and respond to them not only as a patient with a clinical problem but also as a human being with emotions related to that problem.

Notes

1. J. Kelley Avery, MD, “How the Medical ‘Lawsuit Pie’ is Cut – Lawyers Tell What Turns Some Patients Litigious,” Medical Malpractice Prevention, July/August 1986.
2. Howard B. Beckman, et al., “The Doctor-Patient Relationship and Malpractice – Lessons from Plaintiff Depositions,” Archives of Internal Medicine, June 27, 1994, v.154.
3. Paul Weber, JD, “When to Report ‘Free Servicing’ of Patients to Data Bank,” Argus, July 1995.
4. Byron H. Demorest, MD, “Waiving Your Bill May Avert a Claim Following a Poor Clinical Outcome,” Argus, November 1992, (see “Waiving Your Bill May Avert a Claim Following a Poor Clinical Outcome,”)