Talking with patients after an adverse event is never easy. In the July issue of AAOS Now, AAOS Medical Liability Committee members Thomas Fleeter, MD, and Robert Slater, MD, started a conversation with Lee McMullin, CPHRM, senior risk management and patient safety specialist for Cooperative of American Physicians, a physician-owned and governed, California-based medical malpractice liability cooperative. The conversation continued in an AAOS Now podcast (downloadable from www.aaosnow.org/podcast), and concludes here.

Dr. Slater: When it’s necessary to discuss an adverse event or complication with a patient, who should do the talking? Should there be a “team approach,” or does the physician require a witness?

Mr. McMullin: When a major event occurs in a hospital acute care setting, the facility’s risk manager may have the appropriate skill set to do that. But not every facility risk manager has that skill set. The surgeon or provider who is primarily involved in the event is the best person to make that disclosure, but sometimes they’re so emotionally disturbed by the situation that they need a surrogate.

Before the conversation occurs, however, everyone on the team—including the nursing staff and anyone else involved in the care setting—should know exactly what’s going to be said and how to say it. The message must remain consistent throughout all future conversations with the patient, their family, and any of their contacts.

Dr. Fleeter: What are the nonverbal things that can help ease the situation? Are there things that the physician can do to help convey sincerity in talking about this problem?

Mr. McMullin: The physician who has an empathetic and compassionate approach to their patient is very successful. Surgeons who operate on Friday at 5 p.m. and then leave on vacation don’t go over well. The best situations are those where the surgeon will be around to follow the patient in the immediate aftermath.

The fewer distractions, the better. The postacute care unit may not be a good spot for a discussion because the patient is recovering and won’t remember what is being said. There is a proper time and proper place for that interaction. If it’s a known complication of the surgery, the physician should be able to lead into that disclosure discussion by referencing preoperative, consent, and expectation management conversations. “Remember that discussion we had before your surgery about the risks, benefits, alternatives, and complications, and how certain events could happen? Well, this one did happen.” Then the discussion turns to what is being done and who is involved.

I’m also a big advocate for including family members in the preoperative discussions. When patients are unable to speak for themselves, the surgeon may need to address the spouse or other family member who might not understand what happened because they didn’t hear those disclosure conversations. It’s a matter of building trust on the front side, as opposed to trying to catch up to it on the back side.

Dr. Fleeter: It seems to me that the patient should be able to reasonably expect an ongoing discussion, even after discharge. I think the surgeon should make continued contact with the family long after they leave the hospital, because otherwise they may feel abandoned. Can you address that?

Mr. McMullin: Oh, absolutely. When a complication occurs, that individual is going to require more handholding than perhaps the surgeon’s schedule allots. There may be potential additional disclosure discussions with the patient and/or family members as more information becomes available. Depending on the severity of the event, there may be an investigation into the matter to determine why it occurred.

With hospital-based events, the hospital risk management staff is probably the best to maintain communication with the family member and to keep them posted.

Dr. Slater: Could you expand on empathy? How do we sound sincere and not condescending when we talk to our patients?

Mr. McMullin: The condescending viewpoint is part of a person’s verbal capabilities. Some folks just don’t have very good verbal skills. They are not the ones to put in the front line.

With respect to the empathy versus apology model, apology laws differ from state to state. In California and other states, an expression of empathy cannot be used against the physician, but an admission of guilt can.

So, the caveat is that the physician should understand the rules in the state in which he or she practices regarding an empathetic versus apologetic statement.

Dr. Fleeter: It seems to me that it’s never inappropriate to say that I am sorry this happened to you. I don’t think I’d ever be sued for that, correct?

Mr. McMullin: It depends on how you say it. It’s totally appropriate to say, “I’m sorry you had this experience. I’m sorry this has occurred to you.” That’s very human, straightforward, from the heart, and it goes a long way to establishing and reestablishing the trust relationship between the patient and the physician.

In the immediate aftermath of an event, what you don’t want to say is “I’m so sorry this happened to you. If I had just not done X, Y, or Z, there would have been a better outcome.”

In many states, an expression of empathy is not admissible. Empathy is saying, “I’m so sorry this has occurred to you. I never want this experience to happen to any of my patients. We know it’s a risk of the procedure, and this is what we’re doing for you and how we’re going to get you through this.”

On the other hand, a true apology is really defined as one where you know you goofed up. Those are the tough ones because after the investigation is completed, there likely needs to be a checkbook at the end of that apology: “We’re sorry, and we’re prepared to compensate you for the event that occurred to you. We’re not going to give you the bill and we’re going to make sure that you don’t have an economic loss as a result.”

The apology is an acknowledgment that we didn’t do what we should have done. That does not happen until after the investigatory team has sufficient evidence that what transpired and led up to the event is clearly something that should not have occurred.

Dr. Slater: Would a surgeon ever come out and say “Gee, I’m sorry this happened and we’re going to compensate you for that”? Or is that discussion conducted well down the line by somebody other than the surgeon?

Mr. McMullin: That should occur well down the line because, once it’s identified that there might be a checkbook involved, the team now evolves to include a professional liability standpoint. The surgeon can explain a complication that occurred to ensure that the patient understands that it is a complication and that the surgical team is being transparent. I’m a big advocate for telling people where to go for information. Tell them to go to Medscape or other sites that are legitimate, quality locations to get quality medical information about complications of care so that they can read up on it themselves. In today’s smartphone environment family members can “Google” what you’re saying while you say it. If you don’t direct them to quality sites they’ll more than likely get what I call “Google Garbage” written by self-declared “experts” reading from outdated Merck Manuals available online.

The other factor is to be available. Put yourself in the patient’s role. What questions would you have? If you, as the surgeon, don’t know the answers to the patient’s questions, be the messenger and get an answer.

Dr. Fleeter: How important is it to bring in additional opinions, experts, or whatever after a complication? Does that help defuse the situation?

Mr. McMullin: From a risk management standpoint and depending on the clinical situation, getting a second opinion to validate the surgeon’s opinion and having more than one opinion captured in the chart has some value.

Dr. Slater: What mistakes have other physicians made that you would want our readers to know about that you haven’t covered?

Mr. McMullin: Don’t jump the gun; don’t fall on your sword. You are human. You want to be compassionate and get to the patient’s bedside as quickly as possible, but you may end up saying things in a way you shouldn’t.

There should be a time-out mechanism here. Before you do that, pause; if you’re not sure what to do, find somebody—such as your facility risk manager—that you can talk to and involve in the conversation. That person can help defuse the emotional elements and create a game plan for moving forward. I have seen charts that say, “I apologized to the patient and I told her it was all my mistake,” right there in the record. That’s falling on your sword.

The disclosure comment doesn’t have to be put in the chart immediately. Evidence of some type of disclosure discussion is required, but that can be done at the appropriate moment.

Dr. Fleeter: When I wrap up discussions with patients, I always ask whether there are any topics that we haven’t discussed or questions that we haven’t asked. So I’m turning to you and asking the same thing.

Mr. McMullin: I advocate that providers tell patients, “I’ve given you a lot of information right now. Do you need some time to digest and think about it? I expect that you may not remember everything I said and that you may have questions. I want you to know I am available to answer those questions. I may not be available right away, but I will call you back.”

In other words, you need to manage expectations. When patients call the office, a provider cannot drop everything and answer the phone. So manage that expectation immediately. Be available. That’s the key point.

Dr. Slater: One last question: Will these techniques help defuse a patient’s anger after an adverse event?

Mr. McMullin: I have found this method for disclosure is the best way to deal with a patient’s various emotional situations. More often than not, the patient isn’t angry—but family members may express their anger. They weren’t part of the consent discussions beforehand and may not be part of the disclosure discussions. They don’t have a relationship with the provider, so they are like a loaded gun, looking for somebody to shoot.

If a patient does get angry, I think there is value in addressing that anger as a normal feeling. You don’t want to absorb it or take it home at the end of the day. You need to expect that and be ready to deal with it when it hits you.

Editor’s note: Articles labeled Orthopaedic Risk Manager (ORM) are presented by the Medical Liability Committee under the direction of Robert R. Slater Jr, MD, ORM editor. Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional. Email your comments to feedback-orm@aaos.org or contact this issue’s contributors directly.