Medical Excellence Doesn’t Mean You Never Have to Say “I’m Sorry”

Every radiologist worries about missing a diagnosis or giving a false-positive reading, but diagnostic errors are not a rare event in radiology.

The multi-facility RADPEER study found peer disagreement in 0.8 percent of “non-difficult” cases and in 2.9 percent of “difficult” cases. One study has found that up to 54 percent of results of mammography are overdiagnosed. Another study purports that of lung cancers presenting as a nodule on chest radiographs, 19 percent were missed (when the median diameter was 16 mm). Diagnostic error has been defined as a diagnosis that is found to be wrong, delayed beyond the window of optimal treatment, or missed entirely. This definition assumes there is a subsequent definitive finding through a review of the data or a new test. The type of error most often leading to malpractice action is failure to diagnose.

Physicians typically understand their errors with stunning clarity. Admission of error to the patient, however, forces the physician to decide between “deny, defend, and delay” and collaborative communication to mitigate both the effects of the diagnostic error for the patient and the likelihood of litigation against the doctor.

Is it really ever safe to say “I’m sorry”? The answer to this question seems to be different for hospitals and for individual physicians. The Erlanger Health System instituted a “collaborative communication resolution program” in 2009.  By 2018 the hospital system was able to report:

• Agreement had been reached with patients that 65 percent of adverse events did not involve medical error.
• Of the 35 percent of adverse events found to involve medical error, 43 percent of claims were resolved with apology alone.
• The average time to resolve a claim fell from 17 months to 8 months.
• The total liability costs per 1000 admissions fell from $61,430 to $34,851.

The American Medical Association endorsed this and similar programs as “an effective way to learn from medical errors and near misses, enhance patient safety, and improve the liability system,” Clearly, apology is a cost-effective strategy for hospitals seeking to reduce liability for practitioner error. But what effect does apology have for the defense of the radiologist?

The answer is “It depends.”

There are situations in which the decision to disclose is not left up to the doctor. Some states, such as Florida, have laws that mandate disclosure of adverse events to patients. Most hospitals give the task of disclosure to appropriately trained representatives, such as risk managers. Radiologists should stay in their lane and allow the hospital’s designated disclosure officer to take over communications with potentially aggrieved patients.

And there are situations in which genuine expressions of sympathy will not be held against the physician in a legal proceeding. At least 29 states (see below) have “I’m sorry” laws that permit physicians to express sympathy without making a statement of fault. These statutes generally protect benevolent gestures and statements of sympathy, not frank admissions of negligence of fault. However, a few states have laws that exclude actual admission of fault or negligence from the evidence in a subsequent lawsuit.

Legal advice is essential.

Patients sometimes sue because they are greedy. Patients more often sue because they want to know what went wrong. They want acknowledgement of error. An expression of sympathy upfront can mitigate frustration and anger. It can temper emotions. It can pave the way for expeditious settlement without costly, extended litigation.

While the statement is not without foundation that no good deed goes unpunished, empathy usually maintains the doctor-patient relationship. Excellent counsel preserves the bank account.

States That Have Enacted Apology Statutes to Protect Doctors in Litigation

Illinois   None. Provision allowing for sympathetic gestures (Ill. Rev. Stat. ch. 735, §5/8-1901) declared unconstitutional by state Supreme Court (see Lebron v. Gottlieb Memorial Hosp., 930 N.E.2d 895 (Ill. 2010)).

How to Apologize to a Patient. Adapted from American Association of Family Practice Guidelines.

How do I apologize to my patient?

1. If a medical mistake in your practice is worthy of an apology, make sure you offer it skillfully.
2. Be sure of the facts.
3. Meet with the aggrieved. Make sure your hospital’s risk manager has identified the right people for the discussion.
4. Time and place are critical. Avoid any distractions that diminish the importance of the event to the patient or the patient’s family.
5. Ask patients what they understand.
6. Describe the process through which the diagnosis was made.
7. Show empathy. Make it clear that you regret the outcome, even if you maintain your technique was correct.
8. Offer an apology, as advised by counsel.
9. Do what you can to make things right.