"I'm Sorry": An Apology can be a Powerful Lawsuit Mitigation Tool

How is it possible for a doctor to operate on the wrong side of the brain or amputate the wrong limb? Unfortunately, medical errors happen all too often. Diagnostic errors can be the result of transcription errors on lab results, poor interpretation by the physician, or failure to consult a specialist. Surgeons have left sponges or instruments inside the patient, performed the wrong surgery, or performed surgery on the wrong part of the body. A hand slip, an unanticipated complication, an incomplete history, a failure to note allergies, etc., can all lead to catastrophic results. Most of these errors can be attributed to fatigue, miscommunication, and, sometimes, outright recklessness. These surgical mishaps require additional surgery to correct leaving the patient prone to infection or other risks. In the worst case, surgical errors can lead to disability or death.

But, what disclosure does a doctor who makes an error provide to the patient? There has been substantial debate in the medical community as to the correctness or value of a simple apology. Back in December, 2009, I wrote about the power of an apology in litigation, using the case of tragic case of actor, James Woods’ brother as an example. Traditionally, health care professionals feared that admitting fault invited litigation; maybe they notify their malpractice carriers and let them deal with it; maybe they made no disclosure at all; worse, maybe they covered their misconduct up. Insurers and medical malpractice defense attorneys have, historically, discouraged doctors from apologizing to their malpractice victims. The rule has always been not to talk about the events, to anybody, even a passing comment can be considered an admission.

Yet, malpractice incidents continue to occur and malpractice insurance premiums continue to rise; national patients’ rights movements are pushing for full disclosure of medical errors, and the medical profession and hospital industry may be re-thinking the traditional approach known as “defend and deny.” Studies have shown that admitting fault, simply saying “I’m sorry,” and offering immediate compensation, may go a long way toward preventing a medical or hospital malpractice lawsuit. In 2001, the University of Michigan Health System launched a program encouraging health workers to report medical mistakes. The program included a procedure for telling patients and their families about the error, informing them what steps are being taken to prevent similar mistakes in the future, making a sincere apology, and offering fair compensation. Researchers analyzed records before and after the program was implemented. Their findings? Admitting fault, apologizing, and offering compensation resulted in a dramatic reduction in the number of malpractice lawsuits and other compensation claims. Obviously, a malpractice lawsuit may be avoided through disclosure, apology, and compensation.

Of course, this is not always the case; an apology may avert a lawsuit, but, again, it may not. There is no guarantee. However, when a mistake is not admitted, along with the pain of that medical mistake comes the pain of betrayal or deceit. Thus, it would make sense that a patient’s anger and willingness to pursue litigation is tempered by a sincere apology. It makes sense that a patient would appreciate a doctor who takes responsibility for his or her error. Honesty and sincerity should go a long way in helping to ease the anger and pain. In order for this to be effective, it must be a team effort. Medical errors are usually the result of a communication (written or oral) breakdown among the medical team – surgeon, nurse, anesthesiologist, and lab technician. Ultimately, someone, maybe all, is responsible.

When a man noticed a protrusion on his backside that was squirting hot fluid less than two weeks after surgery, he was shocked to learn doctors had carelessly left a sponge inside him. A hospital surgeon told him: "No matter how this happened, I was the surgeon in charge; I was the captain of the ship and I was responsible and I apologize for this." A hospital administrator also apologized. Impressed with their honesty and apology, the man settled directly with the hospital rather than seek legal counsel.

As a legal strategy, apologies remain a gamble. An article published in the Annals of Internal Medicine found survey respondents were 1.5 times as likely to seek legal advice when a medical error was not disclosed and no apology was given; although, that same survey found an apology will not, automatically, deter lawsuits.

Patients and family members can help protect themselves from medical errors by asking questions and having someone serve as their patient advocate, whose job it is to pay attention to details of treatment, procedure and surgery. The Agency for Healthcare Research and Quality offers tips to protect you and your loved ones. Little changes can lead to big improvements in patient safety.

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide legal finance cash flow solutions and consulting when necessities of life litigation funding is needed for a personal injury plaintiff who finds him/herself embroiled in lengthy personal injury litigation, with no end in sight. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board.