An apology may even prevent a lawsuit
It sounds so easy to say that healthcare professionals need to be willing to say “I’m sorry” to their patients. But it’s not that simple. Ron Harman King of Vanguard Communications discusses the legal considerations in this edition of “The Wired Practice.”
I have some great news to share: If you’re a healthcare provider in Ohio, you no longer need worry about losing a malpractice lawsuit just because you apologized to a patient. A recent ruling by the Ohio Supreme Court means doctors in that state now enjoy special legal protection under what’s called an “apology law.”
The court ruled that a healthcare provider’s apology to a patient cannot be admitted as evidence in a civil lawsuit – even if the apology expressed fault or, “acknowledgement that the patient’s care was substandard.” Massachusetts was the first state to enact an apology shield law, in 1986, and since then, some three dozen other states have passed similar legislation protecting “statements and benevolent gestures to patients and families after an unexpected outcome.”1
Is it too late to say “I’m sorry”?
Now, please note some laws put a time limit on the inadmissibility of an apology from three to 30 days. The intent is to encourage doctors to communicate to patients sooner and more often. And to that I say, bravo! When dealing with aggrieved patients, sometimes the best solution is to make some sort of reasonable conciliatory statement.
But wait. Hold on. Here’s where it gets tricky. Just when and how should healthcare providers offer an APOLOGY? Hoping to answer this question, I consulted Webster’s dictionary and found multiple definitions for the word apology, which can mean variously, a formal justification, an excuse, a defense or admission of error or discourtesy.
In my experience, I don’t recall witnessing bad outcomes from a single error. My observation is that poor clinical outcomes are overwhelmingly complex and multi-factored. And surprisingly often, patients and their families aren’t really looking for a confession from providers – only words of support.
I will share an illustrative anecdote. Years ago, a professional colleague served as chairman of the board of a prominent hospital. Sadly, during his tenure, staff at the hospital fed a child patient with severe food allergies a peanut butter sandwich, and the child died quickly. The child’s mother subsequently sued the hospital, and the case dragged on for years, ending in a settlement with the family.
Throughout the legal process, hospital attorneys forbade anyone from the hospital to have contact with the family. After the settlement, the board chairman led a small group of hospital representatives to visit the family and issue condolences. The mother’s reaction left everyone speechless. “That’s all I ever wanted,” she said, “to hear someone – anyone – from the hospital say they were sorry for our loss. Had I heard it right after my son died, there would have never been a lawsuit.”
Empathy + apology = empathology
The obvious lesson here is that an ounce of spoken comfort just might prevent a metric ton of legal bills. This is reinforced by one estimate that 95 percent of lawsuits are settled out of court.2 But a less obvious lesson is that an apologizer can be highly selective about what to apologize for. Or – more precisely – a very effective and viable option might be not to apologize per se but to offer empathy in a manner that conveys the impact of an apology. In this spirit, I looked again in the dictionary for the right word but failed to find it. So I’m going to make up a new word: empathology, which is sort of a mix of empathizing and apologizing.
In the case of the grieving mother, as I heard the story retold, the hospital representatives said only that they were sorry for the loss of her child. According to my friend’s account, no one said, “Your child’s death was entirely our fault.” Not knowing the details, I imagine that the facts of the case were complicated, and that opposing attorneys battled over whether the hospital made reasonable efforts to manage the boy’s extreme allergic condition.
You can’t spell practice without PR
Mind you, there are times to make a full-on apology, notably after a clear discourtesy. I was party to an example recently. In speaking with a patient, a provider referred to the patient’s years-long health struggle as, “your little problem.” To be sure, the provider was rightfully exasperated with a completely irrational human who refused to accept that the worsening of her maladies was not due to her treatments but despite them. It didn’t matter. The slip of tongue slammed shut the patient’s ears and only fueled her anger. A brief, calm apology for use of an insensitive adjective might have tamped down her ire and led to a resolution.
Among those of us in the field of reputation management in healthcare, a common saying is that you can’t spell practice without PR. Much of the job of providers is to furnish both physical and emotional care – and sometimes grief counseling – whether it comes as a personal apology or something else. Now that doctors are gaining added legal protection for expressing contrition, the next time you find yourself confronted with an upset patient, consider whether it might be time to say, “I’m sorry” in a different way. Perhaps that’s the time to offer an empathology.