Among the things that physicians and other healthcare providers generally don’t learn in medical school is how to speak with patients and their families after bad outcomes, particularly when a medical error or possible error is involved. Confusion about what kind of statements are legally protected, coupled with feelings of fear, guilt, shame, or the overwhelming emotional state of upset patients (or grieving family members) only add to the pressure. At the same time, the growing belief is that more forthright and empathetic communication from physicians reduces the incidence of malpractice lawsuits and licensing complaints dramatically. (E.g. William Sage, Rogan Kersh, MEDICAL MALPRACTICE AND THE U.S. HEALTH CARE SYSTEM, p. 151 (Cambridge University Press, 2006).) So what can and should physicians say?
1. What does the law protect?
California, like many states, has an “apology law” that provides that statement, writings, or benevolent gestures “expressing sympathy or benevolence relating to the pain [and] suffering” are inadmissible to prove liability. California protects statements of sympathy, no matter who makes them, as long as they are made to a patient or family member. However, the law does not protect statements that fault or substantiate plaintiffs’ allegations, which can be used against physicians.
• In other words, physicians can – and should freely make – compassionate statements, i.e. “I’m so sorry that you are in so much pain” without fear that the statements can be used against them.
• On the other hand, physicians cannot make acceptance-of-responsibility-statements without legal consequences, such as “I’m so sorry that I hurt you.”
2. So how much should the physician say?
What to express depends upon whether the circumstances call for expression of empathy or an acknowledgment of fault. It is beyond the scope of this article when fault should be acknowledged. (Consult your malpractice carrier, employer, or a lawyer.) Expressions of empathy are very different from apologies. If fault is being admitted, then Randy Pausch’s definition of a “good” apology works: a “good” apology expresses that (1) what I did was wrong; (2) I’m sorry I hurt you; and (3) how do I make it better? (Randy Pausch and Jeffrey Zaslow, THE LAST LECTURE, p. 162 (Hyperion 2008).) This model, however, only works for a case of unmistakable error. In the more common ambiguous circumstance where fault is not being conceded, physician are often not “apologizing” but instead are express empathy in a manner that must be more circumscribed and nuanced.
• Regardless of fault or the lack thereof, we recommend that physicians always convey three protected elements of what Dr. Michael Woods, author of Healing Words: The Power of Apology in Medicine (Doctors in Touch 2007), calls the 5 “R’s”:
• Regret: (“I am so sorry you are going through this”);
• Recognition: (“This has been so hard on you”); and
• Remaining engaged: (“I am here for you.”)
• On the other hand, Woods’ other two “R’s” – (taking) responsibility and (helping) remedy – should be reserved for cases where there is clear, conceded physician error. Based on the law above, physicians should expect that expressions of responsibility (i.e. Pausch’s expressions that “what I did was wrong” or that “I hurt you” or expressions of remedy (“how I will help you through this” or why “it will never happen again”) will be legally admissible.
3. How should the physician say it?
• Prepared: If consolation is a new skill, physicians should write out the points they want to convey to be prepared and ensure the right message is conveyed with the right tone. Nervousness can lead to saying too much (i.e. expressing fault) or to inappropriate defensiveness or, worse, lightheartedness. The consolation or apology should not be read, just thought out carefully in advance.
• Informative: It is critical to be clear, honest, and direct about what happened. At the same time, too much information can be overwhelming. The worst approach is evasion.
• In person: Communication should take place face to face. At a minimum, the conversation should be over the phone. Email, which omits emotional tone, is the wrong way to offer consolation or apology.
• In private: It is easier to speak in a place where the conversation will not be overheard (except by physician staff or colleagues who will be supportive witnesses in cases where litigation or complaints ensure).
• Informally: It is better to speak in closer proximity, on the same level (i.e. both sitting or both standing, without a desk or bed in between doctor and patient).
• Without delay: Physicians should not put off these talks. Patients (and families) need soothing and good communication most when their feelings are raw.
• Active listening: As important as what is said, is how it is said. Before speaking, it is essential to defuse emotional or grieving patients or family members with active listening, i.e. focusing attention on the speaker, paraphrasing back what you hear, clarifying what is being said in nonjudgmental, without agreeing, disagreeing, or being defensive, conveying that you hear and understand the speaker. Active listening creates a collaborative, emotionally supportive environment. Patients or family members are often as desperate for emotional support as they are for information about what happened and why. Before discussing anything about the medical issues, the physician must ask the patient (or family member) how he or she is feeling and, if appropriate, ask questions.
• Taking notes: It is important to document the communication and the patient (or families’) reaction and to note any witnesses in the patient medical records. Writing down what is said goes hand in hand with active listening. It also is a helpful record if there is any malpractice suit or complaint.
• Sincere: The most important thing is to speak from the heart. It can be a challenge to convey the right tone while staying on message (i.e. expressing that you are sorry for what happened, not for having done anything wrong), but the expression must be genuine.
Harry Nelson is a partner in Fenton & Nelson, LLP. Fenton & Nelson counsels healthcare providers on risk management and legal complaince matters. For additional information, please contact him at harry@fentonnelson.com
©Harry Nelson 2008
California Healthcare Law 