By Jordan Parnell and Glenn Day
For medical professionals, a malpractice suit means never opting to say you’re sorry.
In 36 states, however, you can, and it won’t necessarily be held against you and result in larger claims. Some may categorize “I’m sorry” as an expression of sympathy, so it may be okay. Others see it as an admission of fault, making it a risky expression for healthcare professionals.
Your legal counsel should be your guide. So should your broker. Whether you’re in a “sorry” state (however it’s defined) or not, it doesn’t hurt to double-check the impact on your professional liability policy. The policy may contain “no admission” or “cooperation” clauses that exclude coverage if you admit to or assume liability. Even if it doesn’t, an apology might negatively affect insurers’ third party litigation. It also might impact your ability to secure protection in the future.
Do apologies make a difference in medical malpractice cases being brought?
One recent study of over 3,000 malpractice claims over eight years found apology laws do not generally reduce either the total number of claims or the number of claims that result in a lawsuit.
But the University of Michigan and the Veterans Administration hospitals instituted carefully structured programs that combined apologies with restitution offers. They found the opposite. The University of Michigan, over an 18-month period, reduced its legal budget from $3 million to $1 million. The VA Hospital in Lexington, KY, where the administration began its apology program, saw malpractice awards drop from an average of $98,150 to $15,622.
“I’m sorry” disclosure protocols have been utilized more within hospitals. Although state apology statutes don’t specifically address long-term care facilities, the disclosure protocols are relevant. A disclosure program will set the bar for high ethical standards while also improving patient/resident satisfaction and communications.
Its components should include:
- Your program’s goals and objectives.
- Definition differentiating “I’m sorry” as an expression of sympathy from an apology, which accepts responsibility.
- Implementation procedures that identify who decides if error disclosures are merited and who discloses the error to the patient. It also defines specific circumstances for an apology or expression of sympathy.
- Specific steps for “I’m sorry” (as an expression of sympathy). It’s key, for example, to be sincere, but to emphasize this is not a statement of fault. Other suggestions: Don’t guess as to what happened or assign blame to other parties. Offer a contact for further information.
- Specific steps for an apology. Do this only if an investigation shows an error was made that resulted in an injury. Provide an apology and an explanation for what occurred. Provide information on preventative actions. Determine actions for closure. If that includes compensation, signed releases are necessary.
- Identify responses your team should avoid, like referring to staff by name and discussing second-hand information.
- Identify documentation requirements in the patient’s record.
While no medical professional wants to adversely impact a patient, saying “I’m sorry,” may ease some of the immediate pain.
HUB International’s team is ready to help your organization respond proactively to the various risks the healthcare industry must manage.