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When doctors make mistakes, often the basic sentiment keeping them from saying, “I’m sorry” to the patient or family may be similarly short: “I’m afraid.”

Because apologies expressed for medical error can become evidence used against them in subsequent malpractice cases, doctors and hospitals frequently shy away from apologies. To combat that fear, in the past few years at least 27 states have now enacted some form of apology legislation — also known as “I’m sorry” laws — to protect medical professionals from the backlash expressions of regret may cause. Prompted by a Searcy physician, Arkansas state representative David Evans introduced an “I’m sorry” bill in the 2007 legislative session, but the bill — HB 2387 — died in committee.

That may have been a problem of timing, said Arkansas Medical Society (AMS) Executive Vice President David Wroten. Focus was on pushing other bills such as for a trauma system, and since the massive tort reforms of 2003, further liability legislation was a lesser priority. He said he was not aware of any organized opposition to the bill as a general concept.

“Apology law is not a new thing, and it’s not a rare thing. It’s happening more and more,” Wroten said. “Really all “I’m sorry” legislation is about is trying to encourage communication between a doctor and his patient, and that’s always a good thing.”

That’s exactly right, said Doug Wojcieszak, founder of the Sorry Works!
Coalition, an Illinois-based organization promoting the advantages of sincere apologies, and forthright disclosure for medical error cases. He says, though, that a law, while helpful, is not necessary. Physicians can implement the three-step process Sorry Works! recommends on its website without any legislation in place.

The approach he advocates uses common sense, courtesy, integrity and an upfront and credible willingness to improve processes and fix problems. He said most physicians struggle with the system because it puts the emphasis on deniability and defense rather than on honesty, accountability and positive change.

Moreover, Wojcieszak said that the traditional “delay, deny, defend” strategy results in doctors unwittingly doing everything they can to invite a lawsuit. “Doctors don’t understand legal strategy. They don’t understand what pushes people to call attorneys or file suit; what gets an attorney fired up,” he opined. “If they did, they wouldn’t be doing what they’re doing.”

Wroten said, “It’s a given that when something goes wrong, in the legal environment we live in today, there is a fear of expressing that sympathy and that apology. Even if you’re not at fault, there is a fear of it.”

But Wojcieszak said most malpractice lawyers are not “out to get” responsible physicians.

“I talk to trial lawyers all the time who tell me in a very sincere way that it sickens them that they’re constantly prosecuting the same cases again and again,” Wojcieszak said. “They ask ‘Why won’t these doctors ever learn?’ Well, they don’t learn because they don’t talk about mistakes; they hide and cover them up.”

Wroten said one thing sticks out in the literature he’s seen about why medical malpractice cases are filed. “So often, patients will say, ‘If the doctor had just come to us and told us what had happened, explained it and let us know that they were sorry for what happened and that they were going to do whatever it was we needed them to do to make it right, then we never would have filed a law suit,’” Wroten said.

A 2000 study reported by the American Medical Association showed almost a quarter of lawsuits were prompted by patients’ realization that physicians had by intention or omission not been completely honest about their medical error. In a British study, over 33 percent of British patients participating said a full explanation or apology would have prevented them from suing.

That’s exactly what happened to Wojcieszak’s family when his brother died as a result of medical error.

“We got a settlement, but it was the attorneys who apologized, not the doctors,” Wojcieszak said. “It was never, ‘We’re sorry. Our doctors made a mistake and we’re going to fix this so that it never happens again.’”

One thing he tells healthcare professionals is that language matters: “Be simple and straightforward. Don’t use weak, deflecting words like ‘regret’ (as in) ‘we regret this happened’ or ‘we feel bad this happened.’ Use plain English. Say, ‘I’m sorry this happened. I’m sorry we made a mistake.’ That is gold.”

Besides apologizing sincerely, simply and quickly, the Sorry Works! Coalition encourages institutions to treat the investigation into the instance with similar fearlessness. “Be open with the family or patient. Involve them and keep them informed in the process of discovering what happened and in determining how to prevent it from happening to someone else,” Wojcieszak urged.

Bo Ryall of the Arkansas Hospital Association said that while the organization was aware of the 2007 legislation that was drafted, it was not involved. Nor has AHA heard any calls for another such bill from its membership. He said success of another such measure in the future depends heavily on how much the doctors get behind it.

“I know it’s not something that we’re looking to push,” Ryall said.

Wroten said the AMS has not yet decided whether to pursue a new apology bill for Arkansas physicians in the 2009 legislative session, but that it is worth discussing. “It certainly will be on our legislative committee’s agenda to look at, because we think it’s good for patients and it’s good for the profession. It’s got the potential to limit litigation, and I think everyone would support that concept.”



February 2008

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