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“I’M SORRY”
CAN A DOCTOR SHOW COMPASSION AND SYMPATHY WITHOUT ADMITTING FAULT?

By Waldene Drake, RN, MBA
Vice President, Risk Management and
Dan Groszkruger, JD, MPH
Consulting Editor

Sound Familiar?
Your elderly patient did not survive the surgery. Now, you must face her anxious family gathered in the waiting room. How do you say, “I’m sorry,” without making it sound as if you could have done more to save your patient’s life?

During an endoscopic procedure, fragile tissue is perforated. Of course, you need to fully explain the complication. But also, you want to tell the patient and family how badly you feel that the procedure did not go as smoothly as planned. If you express misgivings and regret, will the patient and family misinterpret your message?

After an adverse outcome, the physician takes a deep breath and braces for the talk with the patient/ family. Later, the patient/family tells their attorney that, although the physician tried to explain the mishap, he provided a terse, quickly-spoken monologue, filled with medical jargon. At the time, both patient and family were still reeling after the unanticipated complication. They were unable to get their thoughts together to ask any questions, before the physician disappeared. When the patient/family called the doctor on the following day, he was not available. Repeated requests for a call-back went unanswered. Days went by without any communication between the physician and the patient/family. There was no chance to review the incident or its future implications.

CAN DOCTORS SAY “I’M SORRY” WITHOUT FEAR OF MISUNDERSTANDING?
Physicians are unsure whether showing empathy to patients is such a good idea. Physicians may believe they should show respect by attending

Many believe that an honest and sincere apology...will deter some injured patients and families from filing a medical malpractice suit.

the funeral of a long-time patient, but hesitate to do so. If a newborn is diagnosed with birth defects, the obstetrician might think to send flowers to the baby’s parents, but holds off. Physicians fear that such conduct may, in fact, lead some patients/family members to mistake genuine caring for guilt.

Medical malpractice attorneys wonder, “At what point did the patient/family stop talking to their doctor, and start talking to a lawyer?” Numerous studies confirm that a majority of patients, even those seriously harmed by professional negligence or mistake, will not sue their doctors. Why do such a few injured patients sue? No one knows for sure. However, many believe that an honest and sincere apology, demonstrating genuine compassion and sympathy, will deter some injured patients and families from filing a medical malpractice lawsuit.

NEW LAW IN CALIFORNIA
Clearly, such beliefs underlie a new law just signed by California’s Governor Davis in July 2000. AB 2804 adds a new section to the California Evidence Code, effective in 2001, that prohibits a “benevolent gesture” as an admission of liability. (“Benevolent gestures” are defined as actions which convey a sense of compassion or commiseration.) Examples may include: (1) verbal expressions of sympathy or sorrow, (2) written messages, including sympathy cards, and/or (3) conduct, such as sending flowers or attending a patient’s funeral or burial service.

According to the new law’s author, Assemblyman Louis Papan, a benevolent gesture may avoid a lawsuit. “A simple apology is certainly no remedy for damages or harm suffered through the negligence or carelessness of others, but it can be part of the overall resolution to a legal dispute,” said Papan. “An act of contrition, if only symbolic, has tremendous value.”

Research into the reasons patients/family file malpractice claims indicates that there may be a window of opportunity in which to salvage the physician-patient relationship, and to avoid a suit. If, however, the physician withdraws from the physician-patient relationship during this time, it often leaves the patient/family wondering what it is that the physician is afraid to say.

CONTINUED CAUTION
Defense attorneys generally caution physicians against making statements that could constitute an admission of fault (see below). Admissions of fault are still evidence of liability that may be used against the doctor, even under the new law. More important, defense attorneys still fear that patients and families may misinterpret even sincere attempts to show compassion or regret. And, there is no easy way to distinguish benevolent gestures from words or conduct which a court will admit as an admission of fault.

This new law may be a step in the right direction. But, are physicians still left dangling on the horns of the dilemma? Perhaps not. When the relationship with the patient/family has endured for some time, the doctor will probably feel a personal need to express sympathy. Whether or not a long-standing relationship exists, the patient/family deserves a thorough explanation. One should not avoid talking with patients/families, merely for fear of possible misunderstanding. After all, a benevolent gesture is no less sincere because, at the same time, the doctor hopes to lessen the likelihood of a medical malpractice lawsuit.

When approaching the patient/family after an adverse event, expect that emotions, on both sides, will tend to interfere with communication. Patiently explain what happened, using non-technical, understandable language. Initially, patients/families generally want to know what happened, not who is to blame. Clearly, there are no guarantees that benevolent gestures will not be misunderstood. But, avoiding contact with a patient/ family, and thereby encouraging their perceptions of guilt or abandonment, may give rise to far greater risks.