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WHEN adverse events happen in medicine, medical practitioners have traditionally been advised not to apologise.
The reason given for this was concern that an apology might amount to an admission, which might make a doctor liable and their insurance policy void. However, in Australia these propositions do not appear to be true. In fact, apologies have an important role in civil society.
There have been Australian cases involving the law of negligence (the main way doctors are sued for personal injury) that have made it clear that the fact somebody has said it is their fault does not mean they are automatically liable for an injury.
The courts regard it as their prerogative to determine liability. If an apology does not determine liability then it should not void an insurance policy.
All Australian jurisdictions since 2002 have passed legislation which prevents an apology from being deemed an admission, from being admitted into court and from determining liability. The aim of this legislation was to reduce litigation by protecting apologies.
The difficulty for medical practitioners — and for the open disclosure process — is that the acts don’t all define apology in the same way. NSW, the ACT and Queensland define an apology as including an acknowledgement of fault (I call this a “full apology”).
The other states and the NT do not. They define the apology that is protected by law as merely an expression of regret (“partial apology”).
This is a big problem for three reasons. One is that the research shows that most people regard an apology as real only if it includes an acknowledgement of fault.
There is also evidence that when someone says to another person “I’m sorry your leg came off” in circumstances where they have in some way caused the wrong leg to be amputated, the injured person is likely to be even angrier than if there had been no apology. This applies especially in cases where the injury is severe.
The second reason is that in a country where businesses (including insurance companies) and projects such as open disclosure are national, the fact that there are differences across the states and territories causes unnecessary confusion. And unfortunately in most cases, for the sake of uniformity, advice will be based on the lowest common denominator.
In the case of apologies, the lowest common denominator is the partial apology. So, even though a medical practitioner working in NSW, for example, is in a jurisdiction where a full apology is protected, he or she is likely to be told by open disclosure trainers to give only a partial one.
The third problem is that for medical practitioners this advice makes apologising even more difficult — to be told there are strict parameters about how to apologise makes it even harder to do so sincerely.
This is all the more disappointing because there are several hospitals in the US and Australia that have moved to a system of full disclosure — including acknowledgement of responsibility for harm — which have found their litigation bills declining.
This does not mean that nobody sues. In some cases, particularly in the US and in some other countries where social security payments are low, a badly injured person may need to sue in order to get sufficient money to survive.
It seems that patients who have been subject to adverse events and subsequently given full apologies are far more likely to either not sue or to settle their cases before trial. Settling a case greatly reduces costs — and makes it far more likely that less of the money will go into the lawyer’s pocket and more into the patient’s.
So, if a heartfelt apology means a patient feels less aggrieved and can result in lower legal costs, why is sorry the hardest word?
Professor Prue Vines is a professor in the faculty of law at the University of NSW. Her professorial lecture on apologising for personal injury can be viewed online.
Posted 5 December 2011
Many years ago I did a medico-legal report about a post caesarian section bladder fistula. The patient had laboured for 36 hrs in a birthing centre before being transferred to the labour ward and then delivered by caesarian section. The bladder was damaged (near the fundus) and repaired by the obstetrician. The fistula was at the bladder base and due to pressure necrosis from the head being impacted in the pelvis for many hours while the midwives practised expectant management of labour.
I pointed out that there was no case against the obstetrician but there may be a case against the midwives. Months later I heard from the patient’s solicitor who told me that the patient and her husband when told of the report said: “We’re not interested in suing the midwives. If we can’t sue the doctor we’ll just forget about it”.
From a patient point of view ……. I had an “unfortunate” experience last year following laparoscopic division of abdominal adhesions. To be told by the surgeon that “I” had managed to give myself a bowel obstruction and then some days later (following further surgery), to be told by the same person that “I” had managed to infect the wound, was completely unacceptable in my view. Under the circumstances, I would have expected at least some vague empathetic noises but not a word came forth. I am still undecided as to whether I can or should take this further but can honestly say that I would not have even thought of any action if any compassion had been shown. And NO, I do NOT want money, overtly or covertly.
Right-minded doctors always apologise if they have clearly made a mistake – to err is human. However it is a disturbingly sad situation where that is taken by the patient as licence to defame you in public fora and the like.They want money either overtly or covertly. The average hard-working, time-poor doctor does not stand a chance against this type of onslaught. The defence organisations agree that there is no defence and you either pay them or hope that it will abate with time – but at what cost to your reputation? Does Prof Prue Vines have anything new to offer us as defence against patient defamation or do we just take it (divinely) on the chin?
Thank god 90% of drs agree that patients should receive an apology, to advise drs not to apologise is astounding and drs who think this way should not be in the profession
Horst Herb is right – it was the MDOs that generated the advice that an apology could be construed as an admission of guilt, and discouraged it. An appropriate response now might be “sorry – we made a mistake.”
In 51 years of doctoring I have been lucky enough to have received only one formal complaint. I took the view that in that case I was the knowledgeable person and therefore had to bend 90% of the way in explaining my thinking and motivation in trying to help that patient. She refused to accept my ‘partial apology’ stating that she wanted mediation before a friend of hers followed by an abject apology and compensation for her psychological distress.
I involved my MDA. My lawyer case manager was unhappy about my having sent an apology. The complaint fizzled out. But should I have a similar problem I would not apologise. I would go straight to my MDA and take their advice.
It may be that many patients would be happy with an explanation and /or apology. But some are after money and would not accept an apology. Until we doctors can predict who wants, what then I would advise doctors not to apologise.
I am also troubled by the injustice to doctors who have done nothing wrong, and in many cases everything right, who agree to paying damages to a litigious patient because that is the cheapest option for their medical defence organisation and for the preservation of the doctor’s good name.
An informative article. As Prof Vines wrote: “It seems that patients who have been subject to adverse events and subsequently given full apologies are far more likely to either not sue or to settle their cases before trial.” We are just human!
The legal framework and its players play a central role in this house of horror where sorry must not cross one’s lips – both Prof Vines and Dr McCoy’s posts make that rather clear.
Why we as doctors have such difficulties admitting mistakes, failures and breaches of protocol might well have a few deeper layers though than just fear of litigation.
Are we not striving to be perfect every day, are we not the top 1% of our schools, are we not used to excellent results and best marks since we were little, perfectionists by trade?
And how many of our teachers and colleagues show us the way by openly disclosing and discussing their failures, mistakes and disasters not just with us but also with others and most importantly with patients as required by the new Open Disclosure guidelines?
The practice of covering up medical mishaps is ancient and a left-over from the times when ‘papa doc knew best’, ruling with unchallenged authority and patients, juniors and nurses had no rights to question our decisions and we had no duty to explain them.
Seems like many are still stuck in that ancient world – no matter how hard the Open Disclosure guidelines, patients, juniors and to some extent even the law are trying to guide us in a different direction.
“..there are several hospitals in…Australia that have moved to a system of full disclosure — including acknowledgement of responsibility for harm — which have found their litigation bills declining”.
Really?
Let me get this right: Lawyers have caused the current situation where common sense and general human decency has become difficult if not career-ending risky, lawyers have successfully prevented a nationwide mitigation of the problem they created by having different rules in different states, and now a lawyer asks us why “sorry” is such a hard word to say?
I have yet to hear the first lawyer to say “sorry that we ruined a once functional health system through an irrational tort system, and sorry that we make everybody’s life (and our health system) so hideously expensive through irrational legal demands, and sorry that we just about ruined professional satisfaction in most health professions by creating legal frameworks that force them to be drowned in unproductive paperwork rather than doing what they were trained to do”.
Professor Vines, is sorry really such a hard word to say?
This was really interesting. Can’t wait to watch the lecture online. Thanks!
Ronald