Op-Ed

Allow doctors to say ‘I’m sorry’ without worrying about being sued

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The relationship between a physician and a patient is, at its best, the ability for two people to reach an understanding while allowing expression, empathy and individuality to guide them. However, many physicians are afraid to express something as simple and as an apology.

When “I’m sorry” comes from a medical professional, we fear that the words will be construed as an admission of fault or guilt — that expressing our regret over a patient’s negative health outcome is a confession of our medical malpractice rather than as words intended to comfort our suffering patient or his grieving family.

Silence prevails because saying “I’m sorry” could be used against us in a court of law. Senate Bill 85, which is still in the Senate, would address and correct this. It would exempt statements of apology as evidence in a lawsuit, reducing the costs of medical liability and reducing health-care costs. The bill doesn’t prevent a patient injured by medical negligence from seeking recourse.

Over 35 states now have some sort of apology law. In these states, studies have shown that medical negligence cases settle faster, litigation costs are reduced, and the claim payout of severe medical injuries is reduced. The frequency and severity of malpractice claims are reduced as patients are less likely to sue or demand higher payments when doctors do not remain silent.

Patients and their families experience a lot of anger when they have poor medical outcomes, regardless of whether a mistake was made by the medical staff. A child needs to have surgery. The surgeon explains the procedure to the parents, explains the risks and they give informed consent for the surgery. Something goes unexpectedly wrong. The parents are overcome with grief. And they’re also angry.

Under current Kentucky law, if the doctor embraces the child’s grieving mother, telling her “I’m so sorry,” that statement can be used as evidence of admission of fault in a civil suit. So he remains silent.

The parents are angry. Not just because they lost their child but because their child’s doctor, the one who they entrusted with their child’s life, didn’t even express his condolences.

Something as simple as an apology allows us to help diffuse the anger and betrayal felt by patients and their families when something has gone wrong. It allows us to show empathy for the suffering of our patients which is fundamental to our ability to treat them.

Empathy helps build trust, and trust is crucial to the doctor-patient relationship. Trust helps our patients take our advice to heart. And it also helps avoid the appearance impropriety, avoid the impression that we are somehow trying to cover up our own mistakes by remaining silent.

Several studies have shown that the underlying motivation for medical-malpractice lawsuits is not because people are trying to make a profit off of a bad outcome, but rather because they are trying to understand what went wrong and want the medical staff to provide acknowledgement of what went wrong.

Kentuckians are better served when their physicians don’t remain silent. This year, the Kentucky General Assembly can take on this issue and bring us in line with the rest of the nation.

Dr. Curtis Cary of Lexington specializes in internal medicine.

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