Here’s the situation. One day, while treating a routine patient for a routine problem, you screw up. You don’t just say the wrong thing. You do the wrong thing. The most extreme example is the surgeon who forgets to remove a surgical sponge from her patient’s abdomen. For a physical therapist, malpractice may include leaving a hot pack on a patient for too long, leaving a burn. Or you may have neglected to properly supervise or support a patient on balance equipment, leading to a fall.
So what do you do? Medical professionals are often taught to “shut up.” That means no apology, no comment. Just pretend it never happened, and hope the patient doesn’t sue you. You’ve heard of surgeons fabricating reasons why a patient needed a second surgery, so they could repair their mistake from the first surgery – all without telling the patient – and perhaps you reassure yourself that no cover-up you could execute would ever even approach that level of misconduct. But you would also [hopefully] agree that ignoring a patient’s hot pack burn is a generally not-nice thing to do – especially when it’s your fault.
Imagine for a moment that the patient couldn’t sue you. How would it change your behavior? Would you be honest? Would you…<<GASP>>…apologize? I’d venture a guess that you’d exclaim, “I’m sorry!” The patient may be angry or hurt, but he won’t feel like you’re either too proud to apologize or so tuned-out that you hadn’t noticed that you burned him. But besides helping the patient process what’s happened in a healthier way, your apology may help you avoid a lawsuit. That’s right – no-strings-attached apologies tend to decrease your risk of getting sued for your error. If you’ve been keeping your sorries to yourself all these years, thinking you were protecting yourself from getting sued, think again [maybe].
Many states have caught onto this phenomenon and enacted “I’m sorry” laws, which protect a provider from having their apology used against them in a subsequent medical malpractice lawsuit. Under these laws, you can apologize without fear of the consequences. It doesn’t mean that the patient cannot sue you, but it means that they cannot use your apology as an admission of liability.
And that’s where it gets complicated. Right now, approximately two-thirds of states have apology laws, but they vary widely. Most states protect only your expressions of empathy or commiseration, while fewer protect your statements of guilt or responsibility. Illinois doesn’t currently have a traditional “I’m sorry” law on the books. Instead, Illinois law says that an offer to pay for a patient’s medical bills after injuring them cannot be used against you in a subsequent lawsuit. Illinois did pilot a “Sorry Works!” pilot program on a limited basis, and the University of Illinois at Chicago Medical Center debuted a similar initiative, which you can read more about in the New York Times here.
Here’s where I apologize.
I’m sorry that there isn’t a clearer answer. I’m sorry that, in Illinois, you can’t just apologize to your patient, or even express empathy to him, while resting assured that it won’t be used against you. I’m also sorry for your patient’s suffering, although you won’t be able to express those condolences to him (without offering the aforementioned un-protected apology yourself). I think that the “I’m sorry” laws are fantastic – and not only because they limit liability against providers. I believe they offer patients the kind of healing they seek, which is compassion, empathy, and understanding. I believe that patients want you to be human, that they dislike the provider-as-god dynamic that’s so common in the healthcare setting, and that they appreciate the recognition of their bodily integrity which you demonstrate by apologizing for shattering that integrity.
At the American Physical Therapy Association’s Combined Sections Meeting in Anaheim, California in February, where I spoke, someone referred to 2016 as the “Year of the Patient.” In the spirit of that, let’s work together to create client-centric clinic policies, lobby for patient protection laws, and develop an approach towards healthcare that supports rather than undermines the patient-provider relationship.
If you believe that you or someone in your clinic made a professional error in treatment or judgment, it’s always best to talk with a lawyer as soon as possible. At Jackson LLP, we specialize in healthcare law, so we can help you navigate the “I’m sorry” laws and make a plan for remedying this situation and avoiding similar problems in the future. Just remember that this article is for informative and advertising purposes only; it doesn’t create an attorney-client relationship and doesn’t provide legal advice.
Have a question or want to chat about your situation? E-mail me at firstname.lastname@example.org.
Want to read more?
Benjamin Ho & Elaine Liu, Does Sorry Work? The Impact of Apology Laws on Medical Malpractice, 43 J. Risk Uncertainty 141 (2011), available at http://www.class.uh.edu/Faculty/emliu/jru11/JRU_final.pdf.
Nicole Saitta & Samuel D. Hodge, Jr., Efficacy of a Physician’s Words of Empathy: An Overview of State Apology Laws, 112 J. Am. Osteopathic Assn. 302 (May 2012), available at http://jaoa.org/article.aspx?articleid=2094499.
David Doyle, Apologizing for Medical Missteps: Whether it’s a Mistake for Physicians, Physicians Practice Blog (Feb. 22, 2014), http://www.physicianspractice.com/blog/apologizing-for-medical-missteps-whether-its-a-mistake-for-physicians.
Kevin Sack, Doctors Say ‘I’m Sorry’ Before ‘See You in Court,’ New York Times (May 18, 2008), http://www.nytimes.com/2008/05/18/us/18apology.html?_r=0.