Apology as Cure: Should Laws Change to Encourage Doctor to Admit Medical Errors?

I was on the receiving end of a medical injury several years ago and have yet to hear an explanation or apology. (I'm pretty sure at this point that I never will.)

I'm familiar with Sorry Works! and I think their mission tends to be somewhat misconstrued. Yes, they advocate for apology, but they also advocate for fair compensation for patients who have been harmed - mediation and negotiation, if you will, instead of a potentially more adversarial trip through the legal system. Is this a sell-out? Well, maybe it depends on how you look at it. There's a lot of emotion surrounding medical harm, and historically the health system hasn't been very good at dealing with it. It can cause a tremendous amount of anger and psychic damage and make it very difficult for patients/families to ever interact with the system again. My sense is that the disclosure and apology movement is at least partially aimed at trying to mitigate this, and I don't think this is a bad goal.

One of the unfortunate truths about medical harm is that fear of being sued has been a huge barrier to openness. It's hard to persuade physicians and organizations to support disclosure if they think they're going to be punished for it - not to mention the shame and embarrassment that seem to be an even bigger underlying issue. For what it's worth, I think patients/families can be more forgiving and understanding than they're given credit for. But it's often easier to blame them and to trot out the lawsuit factor as an excuse for not accepting responsibility for one's mistakes.

I think there is room for some middle ground here. What I don't want to see is a deal with the devil - that is, watering down the open exchange and reporting of malpractice and patient safety data in exchange for disclosing and apologizing to the patient/family. This is not a chess game or an afternoon at the swap shop; this is about behaving like ethical, responsible human beings.

Like most patient safety advocates, I highly value admission of errors and apologies.  A quick admission and apology often heads off a malpractice suits and, more importantly, often leads to steps being taken to prevent similar errors in the future. 

A major problem with the "Sorry Works!" proposal is that it facilitates neither of these two goals because the apology and admission do not have to be timely.  Quoting from the proposal: "This apology meeting may happen prior to litigation or any time during litigation (including during trial phase)."  Once the apology has been given, the physician is in most cases off the hook for any possible action by the licensing board.  Furthermore, even if the physician lies on an application for licensure or clinical privileges by not listing a malpractice payment that may have resulted from the incident, the National Practitioner Data Bank would be prohibited from informing hospitals, MCO's, or licensing boards of the payment. 

The physician could wait to apologize until the malpractice insurance company had decided to pay the claim or even until after he had testified in court that he hadn't made an error and the case had been turned over to the jury!  As long as the physician apologized before the jury rendered its verdict, the licensing board couldn't take any action and the Data Bank would have to keep the payment secret. 

The result of the "Sorry Works!" proposal wouldn't be timely and sincere apologies which are beneficial for all concerned; the result would be last minute cynical self-serving "apologies" designed only to keep the physician from bearing some of the possible consequences of his malpractice.  Licensing boards couldn't act to protect the public and the malpracticing physician could lie on applications with impunity, just as they often did before the Data Bank was created -- the fact that physicians often omitted malpractice payments on applications for licensure or clinical privileges is the reason Congress established the Data Bank, so the purpose of the Data Bank would be severely undermined.  In fact even with the Data Bank in place, Data Bank users found that about 9 percent of the time physicians with previous malpractice payments or medical disciplinary information in their records omitted at least some of the events from their applications.  Of course, they no longer get away with it because of the Data Bank, but if the Data Bank is required to keep the information secret, they will once again be able to lie on applications with impunity.  This hardly protects the public!

I believe that injured patients and their families -- and most patient safety advocates have been in one or both of these categories -- highly value apologies.  We want physicians to apologize when the commit errors.  But even more we want to reduce the likelihood that other people will fall victim to errors committed by the same physician or errors of the same type committed by others.   The "Sorry Works!" proposal may result in apologies (or at least cynical self-serving apologies), but it will make it even more likely that other people will be victims too since licensing boards, peer reviewers, and the Data Bank will be prevented from doing their jobs.