The unexpected medical outcome is an issue that all physicians—regardless of specialty—will have to deal with at some point. When that circumstance arises, physicians must deal with it ethically. However, the medical liability laws that apply in the state of practice (or state where the incident occurred) may add to the stress of the situation and the difficulty of the communication.
Code of Ethics
The American Medical Association Code of Medical Ethics sets forth standards of professional conduct and specifically addresses this situation. Physicians are ethically required to disclose to the patient all the facts necessary to ensure an understanding of what has happened. A physician's concern about any potential legal liability resulting from a full disclosure should not affect the decision to be candid.
Regardless of the tort reform situation in the state, ignoring an unexpected outcome—even one slight enough that it may not be discovered without disclosure—is a violation of all ethical codes. However, real concerns about a potential malpractice suit may affect the way information is disclosed.
Additionally, the hospital culture may add to a physician's stress around the issue of disclosure. An appropriate disclosure program—one that supports both the patient and the physician—requires a "just culture." In such a culture, providers can report an adverse outcome without fear of reprisal or punishment. This is not to say, however, that they are always considered blameless. It simply means that actions are based on an analysis of the facts, and decisions are based on ethical considerations.
Useful and organized approaches to dealing with unanticipated outcomes have been developed by many organizations that have studied the issue. In every adverse event, a thorough root cause analysis must be conducted to answer the questions most patients have: Why did this happen? What is the next step? How will you ensure that this doesn't happen again?
It is important to address the issue of the adverse event in a timely fashion even though the root cause analysis may be a lengthy process. The disappointing outcome should be acknowledged as soon as it is discovered. The patient and family should be informed about the course of action planned (that there will be an investigation, the timetable, and the findings). Findings should provide an accurate explanation of the outcome and be used to determine an appropriate resolution. All communication with a patient or their family should be consistent and documented. Varying or partial stories, although unintentional, may leave patients with the impression that something is being hidden from them and they are not getting the truth.
Adverse outcomes and malpractice
When an adverse outcome occurs, a determination on the appropriateness of care must be made. If the care provided was reasonable and appropriate, the standard of care was not breached. In some cases, however, the patient may be unhappy about the outcome and these concerns must be addressed.
If, however, the outcome is a direct result of a breach in the standard of care, the issue of malpractice must be addressed.
Saying "I'm sorry…."
An adverse outcome without a breach in the standard of care requires an expression of sympathy; when a breach in the standard of care occurs, an apology is necessary. Being sympathetic to a patient who has experienced an adverse outcome is quite different than apologizing for that outcome. A physician expressing sympathy is sorry for what has happened; a physician who apologizes is being sorry for what he or she did to the patient. The semantics surrounding this difference are very important. An expression of sympathy is not an admission of guilt, but an apology is.
Both of these situations are covered under the "I'm sorry" laws. To help address the issue of disclosure, 36 states currently have some legislation dealing with "I'm sorry" (Table 1). In general, these laws prohibit certain statements, expressions, or other evidence related to disclosure from being admissible in a lawsuit. Because medical liability, like many other regulatory issues, is state-controlled, most of these laws deal differently with the issue, despite having similar titles. Physicians should be knowledgeable about the specifics of the statute in the state in which they are licensed.
Surveys of patients have found that many sue because no one ever expressed sympathy or regret over what had happened to them, leaving them feeling that a legal remedy was the only solution. Patients are really yearning for their physicians to be empathetic. They also want to know that someone looked into the cause of the adverse outcome and that steps will be taken to ensure that it can't happen to someone else.
The Communications Skills Mentoring Program offered by the AAOS is a 4-hour CME course on Clinician-Patient Communications to Enhance Health Outcomes. It is designed to help physicians develop and improve their communication skills with patients. This course was designed in conjunction with the Institute of Healthcare Communications and implemented as a result of surveys that demonstrated that orthopaedists are viewed by patients as high-tech, low-touch. The program is available to hospitals, residency programs, and local, state, and regional orthopaedic societies.
Programs that work
After Michigan passed tort reform in the 1990s, the University of Michigan Health System (UMHS) began implementing a program to address adverse outcomes in 2001. The UMHS program is a coordinated team effort involving both the risk management team and the clinical staff. As a result of this program, the number of malpractice claims pending has been reduced, malpractice expenses have been slashed, the amounts paid to plaintiffs as a result of judgments or settlements has dropped dramatically, and the time it takes to handle a claim has been shortened.
The Massachusetts Medical Society launched its Roadmap to Reform in 2012 proposing a process of Disclosure, Apology, and Offer (DA&O) as an alternative to the current tort system. The roadmap uses the fundamentals of the UMHS program, and was established with a grant from the Agency for Healthcare Research and Quality as part of President Obama's Patient Safety and Medical Liability Initiative. The DA&O approach is being piloted in seven hospitals in the state to test its feasibility in different practice environments with different insurance arrangements. The first results should be released next year.
As physicians, we strive for perfect outcomes. The reality is, however, that adverse outcomes do occasionally occur. To address them, we can start by communicating better: be open, engaging, and—most importantly—empathetic. An "I'm sorry" law isn't needed to do the right thing. Used appropriately, root cause analysis, apologizing or expressing sympathy, and resolving complaints will prevent future errors and make the care we provide safer.
Michael R. Marks, MD, MBA, is a member of the AAOS Medical Liability Committee. He can be reached at firstname.lastname@example.org
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 email@example.com or contact this issue's contributors directly.
- American Medical Association Code of Medical Ethics: Opinion 8.12—Patient Information. Available at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion812.page. Accessed on December 7, 2015.
- Institute for Healthcare Communication: Disclosing Unanticipated Medical Outcomes. Available at http://healthcarecomm.org/training/continuing-education-workshops/disclosing-unanticipated-outcomes-and-medical-errors/. Accessed on December 7, 2015.
- AAOS Communication Skills Mentoring Workshops. Accessed on December 7, 2015.
- The Michigan Model: Medical Malpractice and Patient Safety at UMHS. Available at http://www.uofmhealth.org/michigan-model-medical-malpractice-and-patient-safety-umhs. Accessed on December 7, 2015.
- Physicians, Hospitals, Health Groups Announce Initiative to Improve the Medical Liability Environment in Massachusetts. Accessed on December 7, 2015.
- Sorry Works! Available at http://www.sorryworks.net/apology-laws-cms-143. Accessed on December 7, 2015.
- AAOS Communication Skills Mentoring Program. Available at http://www.aaos.org/Education/Csmphome. Accessed on December 7, 2015.