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For other articles and previous issues click here. July 12, 2004 So Sorry? The Pros
and Cons of Admitting Medical Errors Industry experts spotlight the tools needed to make your hospital’s site a hit with visitors—one that can attract new patients. Medical mistakes cause some 50,000 to 100,000 deaths per year,” says Barry Bub, MD, president, Advanced Physician Awareness Training, Woodstock, N.Y. “When you add the mistakes which stop short of causing death, the number is enormous.” Yet Bub is one of a growing number of people who suggest that one approach to modifying this situation is for doctors to break with a long-established medical taboo and admit their mistakes to patients. This is obviously a loaded topic for which there can’t be any seven-step how-to. But Bub and others maintain that doctors being direct and honest with their patients and families actually decreases either the number of malpractice suits or the dollar amount demanded in court. Bub advocates that the physician maintain open and honest communication with the patient and family from the start. Then, if a mistake is made, a rapport has been built, and the anger is apt to be mitigated to a degree, thus lessening the drive toward litigation. “The doctor can’t be totally cut off, then come in after a mistake is made and say, ‘I’m sorry,’ and think that will do much good,” Bub says. Bub, who is a counselor to physicians, looks at the situation primarily from the doctor’s point of view (see sidebar). On the other hand, two defense lawyers see the issue from a different perspective. To varying degrees, they think it can be a good idea to express remorse, which in some instances can lessen or eliminate litigation. However, they agree it’s not a panacea, and each case should be addressed separately. Jonathan C. LaMendola, partner, Cowles & Thompson, Dallas, says, “We’ve had successful outcomes in which the physician or other healthcare giver has been in direct communication with the patient and his family and demonstrated ongoing empathy and understanding. If he’s discussed all treatment options, people do understand that medicine is an art, that doctors do make mistakes. Sometimes they appreciate his candor, and in a number of circumstances, a malpractice claim does not result.” On the other hand, LaMendola says, “the failure to communicate is the catalyzing factor that generates claims. I can’t tell you how many times I’ve sat across from somebody who says that the doctor didn’t care. The person is angry about that, and that cements in his mind the idea of litigation.” Another dynamic, LaMendola explains, is that “even when this strategy for apologizing doesn’t prevent litigation from occurring and a suit is filed, oftentimes it is easier to solve litigation and the settlement is for less, for the resolution people seek is not simply the monetary issues. If the doctor is rigid and going to defend whatever he did no matter what the outcome, that simply reinforces the plaintiff’s will to litigate as hard as he can.” LaMendola defends doctors and other healthcare providers, such as therapists and nurses, and says a significant number of them apologize; of these, approximately one-half are settled. The trend in this direction has been going on for approximately five years and has accelerated over the past two years because of tort reform, which makes it more difficult to pursue claims and sets limits on liability. This makes healthcare givers more comfortable about admitting mistakes. However, the fact remains that the admission of an error opens the door to liability. What also helps, LaMendola says, is when, as in Texas, the state requires mediation, “which is almost always confidential. So this is a good forum for an apology because it cannot be used in court.” On the other hand, an admission in mediation can take any ambiguity out of the plaintiff’s mind that an error has occurred. Although LaMendola reports a good number of positive responses from this strategy, he notes that these have been when his clients were individuals. “We’ve not been so successful with hospitals, for there’s a more generalized level of care,” he points out. “And we don’t represent managed care, which is a bureaucratic administration. There, the issue appears to be not so much a mistake as the patient can’t get the HMO to pay for a procedure.” A somewhat different perspective is offered by Kirk D. Willis, an attorney specializing in malpractice defense for Godwin Gruber LLP, Dallas. “Two years ago, I would have said that absolutely the right thing to do is for the doctor to admit his mistake up front,” Willis says. “Get the matter taken care of quickly and efficiently and avoid malpractice.” Yet Willis says he has had two cases that have given him second thoughts on that strategy. One involved an orthopedic surgeon who was supposed to operate on four lumbar discs but only worked on three. The other occurred when a salastic connector of a morphine pump was left in a patient and caused an infection. “In both cases, the doctors did everything in an appropriate manner,” Willis says. “He did the right follow-up care, tried to rectify each of the situations medically, clinically, and psychologically. He was personable with the family, had a good bedside manner, and documented the records appropriately.” In both cases, however, Willis says, the parties successfully sued. “So now I caution to some degree about being so up front,” he says. “You may paint yourself into a corner. Once you admit to a mistake, it’s not hearsay—you are liable.” So what should a doctor do? “I’m not saying doctors should hide the facts or circumstances,” Willis replies, “but it’s the way you describe a procedure or condition. Sitting through the depositions, I realized in both these cases the doctors could have said that things hadn’t worked out and another visit on the operating table was necessary, without just spilling their guts and saying they blew it.” Willis believes this is an ethically acceptable compromise, especially when the second operation corrects the mistakes of the first. There are certainly clearly unethical options. “I’ve worked with a lot of doctors,” Willis says. “Some would have not said anything and just left their mistakes sewn up in the patients.” Willis says one reason the doctor admitting the mistake makes it difficult to avoid trouble is that although the mistake itself does not mean liability, admitting the error seems to invite litigation. If the mistake is not admitted, Willis says, then the standard the jury must adhere to is negligence—the failure to do what another doctor would do in similar circumstances. “The test is not perfection,” he says. “Even when the majority of doctors do the same thing, [it] doesn’t mean you are guaranteed a mistake-free outcome.” If a doctor was going to admit a mistake, one would think it would be better to do so for “minor errors.” However, Willis says just the opposite is true. “I have no problem with the doctor who is supposed to take out the lung that is 90% cancerous but instead takes out the good lung. I have no problem with this doctor saying ‘mea culpa, mea culpa’ as soon as he can,” Willis says. “I have what I call the ‘[expletive]’ test. If somebody, on hearing the facts of the case, mutters ‘[expletive],’ then you’d better admit that [error] right away. In fact, make it public. It used to be lawyers never let their clients speak to the press. In this case, I think it’s best that the doctor gets it out in the media first.” Willis’ reasoning is that in a case such as the wrong lung being removed, the facts are going to come out anyway and the doctor and his insurer are going to have to pay, so it’s best to try to reach a settlement before court, where the payment is likely to be much higher. If people settle quickly out of court, doesn’t this hurt the defense lawyer’s pocketbook? “Lawyers will always have plenty of clients for court,” Willis chuckles. In major-error cases, jury sentiment must be taken into account. “If a mistake is not of monumental proportions, juries can separate sympathy and follow the law. But if the mistake is of monumental proportions, juries will say, ‘Well, the law reads this way, but here’s this widow and her children, let’s give them some money,’” Willis says. “If it’s a colossal mistake, I would suggest shutting it down quickly, before the family gets a lawyer. If a lawyer is involved, a lot of the money will go to him. If everybody is smart, the family will get a fair settlement, which will mean more to them if it’s over quickly. And the doctor can at least stop what is already bad from getting worse.” Summing up his position, Willis says, “To go back to the original question, ‘Is it a good idea for doctors to admit mistakes?’ My answer is no if you’re asking a blanket question. It has to be decided on a case-by-case basis.” — Thomas G. Dolan is a medical/business writer based in the Pacific Northwest.
Barry Bub, MD, president of Advanced Physician Awareness Training in Woodstock, N.Y., was a family physician for many years before being retrained as a psychotherapist and chaplain. After September 11, he volunteered at the American Red Cross. “What I realized in working with victims of terror was that I had noticed many doctors who suffered the acute stress reaction,” Bub says. “For a conscientious physician, discovering he has made a serious mistake can be devastating. He is in a daze, not unlike victims of accidents, warfare, or terrorist attacks. He can’t believe what has happened. He is in shock, bewilderment, and fear.” After discovering that the research on this topic was almost nonexistent, Bub decided to become a counselor to physicians. The problems they face, he explains, are not unlike those faced by victims of other traumas. Doctors who have made a serious mistake have nowhere to turn to release their feelings. They can’t confide in their colleagues, who, for political reasons, may betray them. They fear an investigation by the hospital and a lawsuit. Unable to seek relief in community, these physicians tend to isolate themselves, become emotionally removed, and carry long-term shame and guilt. “This may explain some of the workoholism, alcohol and drug abuse, and suicides among physicians,” Bub says. “This is all unproven, but the assumptions are not unreasonable.” In fact, the stress—which may have led to the mistake—may have begun much earlier. “There is research that shows a surprisingly high percentage of medical students have experienced severe trauma prior to entering medical school,” he says. “The trauma here, in what is called the wounded healer syndrome, continues through training, which is very stressful and abusive in many ways.” Moreover, Bub says, whereas people in professions such as psychotherapy and counseling are trained to access emotions, physicians are typically trained to repress them and make all decisions based on objective criteria. “Underlying all this is [that] the medical profession is riddled with myths and dogmas in the certification process,” Bub contends. “The better the student, the higher the pedestal on which he is placed, which places at him at a great disadvantage.” One of the great myths, Bub continues, is that of bedside manner—that doctors can listen and understand. “Often a person goes to a doctor as a first line for stress, but doctors are woefully undertrained in this area and are not able to even understand their own stress,” he says. Bub correlates the situation to the moment just before a car accident, when a few seconds seem like an eternity but afterward become a blur. For example, a doctor can tell a patient she has gallstone cancer that will kill her in two months. Then her family says she doesn’t remember the visit, and she is treated for dementia. Solutions? Bub says there is a slow societal awareness of the stresses that doctors are under and there has been some movement to lessen the stresses built into medical school, though not enough has been done in this area. He says training should include communication skills and the same sort of psychological training and empathy techniques that counselors undergo. And physicians should have safe havens to talk through their stress. Bub says this stress is part of a continuum, starting even before the person has entered medical school and greatly exacerbated once the physician has made a serious mistake. When asked if a physician in this state of mind is likely to commit even more serious mistakes, Bub’s telling response is, “Absolutely.” — TGD |
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