By Steve W. Day, Jr., Esquire*
Marshall, Dennehey, Warner, Coleman and Goggin
620 Freedom Business Center, Suite 300
King of Prussia, PA 19406
Telephone: 610/354-8258
Fax: 610/354-8299
As many physicians now know, the Medical Care Availability and Reduction of Error Act (MCARE), mandates that a healthcare worker (defined as an employee or anyone authorized to provide services in a medical facility) who reasonably believes that a serious event or incident has occurred, shall report such event or incident within 24 hours to the patient safety officer of the medical facility. "Incidents" are defined under MCARE as an event involving the clinical care of a patient, which could have injured the patient but did not, while a "serious event" is defined as an event involving the clinical care of a patient that results in death or compromises patient safety and results in an unanticipated injury requiring the delivery of additional healthcare. Interestingly, nowhere in MCARE (or any other legislative enactment) is it mandated that a physician report any such incident, problem, mistake, or mishap to the patient himself. This, under MCARE, is left to the medical facility, but even that requirement is only for "serious events". However, if a medical facility (i.e. ambulatory surgical center, birth center or hospital) discovers that a licensee providing health care services during a serious event failed to report the event to the patient safety officer, the hospital must notify the licensee's licensing board of the failure to report.
Of course, a physician's obligations of candor to his patients should not be mandated solely by the legislators in Harrisburg. But how far can you go? How far should you go? Although not statutorily required, research now strongly suggests physicians' apologies and candor regarding medical mistakes or simply unexpected outcomes, irrespective of whether a mistake was actually made, can be powerful tools in fending off lawsuits; this, despite the popular misconception that such honesty will actually get the physician into the litigation "soup".
Conventional wisdom still holds to the belief that a physician's involvement in litigation is determined by factors involving caseload, unpredictable circumstances and participation in high risk disciplines. Toss in the notion of a litigious population and less-than-defense-oriented venues such as Philadelphia, and many healthcare workers believe these factors are a recipe for the occasional and unavoidable lawsuit – and indeed they are.
However, as noted in a fairly extensive study in the Journal of the American Medical Association, research has forced reconsideration of these traditional explanations of claims experience. According to these findings, risk seems not as much predicted by patient characteristics, illness complexity or even the physician's technical skills, but rather patients' dissatisfaction with their physicians, inability of the doctor to establish rapport, and inability to communicate effectively. (JAMA, June 12, 2002 – Vol. 287, No. 22).
Other studies have proved that after a problem in the course of care, patients or family members have three primary interests:
In fact, one study found that almost a quarter of all medical malpractice lawsuits were prompted by patients' beliefs that their doctor had failed to be completely honest, or had intentionally mislead them when a mistake or unfavorable outcome occurred. More than a third of British patients participating in another study
said they would not have sued if they had been offered a full explanation and an apology. The Veterans' Affairs Medical Center in Lexington, Kentucky, which, at one point had among the highest malpractice claims total in the VA System, is now in the bottom quarter after incorporating direct and quick apologies to patients in its risk management program. Their system involves an immediate provision of information and offer of an apology by the Chief of Staff to any patient harmed by a medical error and when Risk Management determines that the hospital, or its employees, caused the patient injury, a fair settlement offer is made.
Lawyers, perhaps similar to physicians, often cannot help telling "war stories" and this author is no different. Handling nothing but defense of medical malpractice claims as we do, a rough estimation is that at least eight of ten medical malpractice plaintiffs, in one form or another, testify at their deposition or at trial, that the healthcare provider, at some point during the provision of care, was not candid or frank with them, "disappeared" after a problem ensued, and did little by way of explaining what various complications could or did occur and how best they could be dealt with. One quote particularly indicative of this mindset, comes from
a recent deposition where the plaintiff was quoted as follows:
"… It just seemed to me that as soon as the s---hit the fan, and there was this problem, he [the doctor] was like invisible…like poof, where did he go? …"
The cynical, or perhaps none-too-cynical physician, may still be asking himself questions such as whether it's okay to tell a patient, "I'm sorry", regardless of whether they feel at fault, or whether discussing candidly with a patient what has happened and offering apologies may actually plant the seed for litigation, rather than diffusing it. Unquestionably, a certain percentage of lawsuits are going to be filed, regardless of how much rapport occurs and how "warm and fuzzy" you may be. The litigious society we live in, fueled, at least in part, by zealous members of the plaintiff's bar, will always produce plaintiffs and lawsuits, regardless of how compassionate you are and how often you express that to your patients. Conversely, many physicians may remain unscathed, or relatively unscathed by the litigation bug, even if they adopt none of these "risk management by apology" concepts.
The point of these studies and findings, however, and the goal of the instant article, is to suggest that exhibiting and voicing the compassion that most, if not all, doctors feel and what likely motivated many to get into the practice in the first place, is not only very likely good medicine, but also an elixir to potentially avoid the specter of malpractice suits.
If any of the research, comments, or recommendations in this article are disbelieved or looked at with a jaded eye, I would simply say: "I'm sorry".
* Steve W. Day, Jr., Esquire, is a shareholder with the firm of Marshall, Dennehey, Warner, Coleman and Goggin in King of Prussia, PA, and focuses his practice exclusively on medical malpractice defense of physicians, nurses, nursing homes, hospitals, and other healthcare providers, and writes/lectures on a wide array of medical-legal issues. He is Chair of the firm's Long-Term Care Practice Group and a member of the Healthcare Liability Practice Group. Steve can be reached at (610) 354-8258 or at swday@mdwcg.com.