In the third hour of her deposition, and after over a year of litigation, a plaintiff who was suing over the death of her daughter said, “Nobody ever came to talk to us about what happened.  Nobody ever explained it to us.  It’s like they didn’t care.  We had to file this case to learn the truth.”  We hear these words, or words like them, over and over again in litigation.  At times, such statements simply reflect a well coached witness (as defense attorneys, our cynicism tells us this is the case more often than not).  But such statements are made too commonly to never be true.  There are undoubtedly times where the tendency of health care providers to circle the wagons after a bad outcome has led directly to otherwise avoidable litigation.  Every bad outcome should lead health care providers to ask themselves two questions:  1)  How much information should we give the patient and their family? and 2)  Is it time to say we’re sorry?

Communication as a means of risk avoidance

The answer to the first question is fairly straightforward:  the patient and their family should be told as much as they are able to understand about the facts of what happened.  Patients are entitled to this information in as timely a manner as possible.  One consideration that health care providers frequently overlook when answering this question is that prompt and full disclosure of the facts (as opposed to admissions of fault) is the best way to protect against a potential lawsuit.

It has long been known that patient perception of a physician’s interest, accessibility, and communications ability is more important than the technical quality of care as a predictor of a physician’s malpractice claiming experience.  That is, patients who perceive that their physician is not listening, is hurried, is uncaring, or is not telling them everything are far more likely to sue that physician in the event of a bad outcome, regardless of the quality of care provided. Improving patient perception by fully and promptly disclosing the facts may reduce the risk of a subsequent malpractice claim.

Is it okay to say “I’m sorry”?

Things get trickier when trying to decide whether or not to say you’re sorry for a bad outcome.  Most practitioners fear that this will be viewed as an admission of fault that may be used against them later.  In 2007, the Nebraska Legislature passed an “apology” statute for health care providers.  This statute makes statements or conduct “expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence” toward a patient or a patient’s family inadmissible in a malpractice action.  Neb. Rev. Stat. § 27-1201.  The intent of this statute was to provide something of a safe harbor to encourage health care providers to keep communicating with their patients after an adverse outcome.

The protection of this statute is somewhat limited, however.  First, the statement must “relate to the discomfort, pain, suffering, injury, or death of the alleged victim.”  Neb. Rev. Stat. § 27-1201(1).  Second, and more importantly, the statement must not be a “statement of fault.”  Id.  Statements of fault remain admissible.  Thus, the statement “I’m really sorry that this happened” would not be admissible but the statement “This shouldn’t have happened.  It’s my fault” would.

Having said that, there are situations where an outright admission of fault, early in the process, may be the best course of action.  Such admissions should only be made after consultation with your risk manager and/or attorney.  We will examine a few of these scenarios next week.