by Dawn J. Lipthrott

Part 2: When injury occurs -- honest, open and empathic communication--the beginning of repair:

Repair starts with the conversation with the patient about what happened. The current system of adversarial litigation does not promote that human connection and openness about weaknesses in the system. It does not promote a climate where error can be readily acknowledged without fear of potential litigation. And because of that, it does not do anything to promote patient safety or human connection.

When an error with with any degree of injury occurs, ethical health partnership requires that physicians inform the patient as soon as possible. Now, many states require it. Communication about the error needs to include the nature of the error or injury, what happened, and what the impact is expected to be. When necessary, a plan of repair or taking care of the injury should also be presented. Physicians need to stay open and non-defensive to patient and family questions, listen without interrupting, and compassionately address their concerns.

Physicians feel regret when injury occurs for any reason, but often find it difficult to communicate both the fact of the injury and their regret. Why? A big reason is that the current medical liability system creates an ever present threat of lawsuit, instructions to not admit anything that could possibly be used against them, even if an injury was not due to error or an error was systemic. Many physicians want to talk to the patient about it, but are afraid to. The physician will play over in his or her head what happened trying to find if there was any way they could have prevented it. Even when they know they did everything possible, they often feel embarrassed. But it is essential for the well-being of both to address the issue directly. Caring, honest communication is actually part of the repair process.

In spite of the understandable fear of a malpractice claim, research has actually shown that having the conversation about error can actually reduce the likelihood of a lawsuit. One of the reasons patients sue is that they are angry that someone has hidden something from them, has not been truthful, or has not expressed care or concern. Failures in communication about the injury and often, even before injury, were determined to be factors in over 70% of one study of medical malpractice claims. (Sources: The doctor-patient relationship and malpractice. Lessons from plaintiff depositions Beckman, H. B. et al,
Archives of Internal Medicine, Vol. 154 No. 12, June 27, 1994; Factors that Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries, Gerald B. Hickson et al., 267 JAMA 1359 (1992) ; Development of an Early Identification and Response Model of Malpractice Prevention, Hickson, G. B., et al, 60 Law & Contemp. Probs. 7 (Winter 1997).

Help for having the conversation can be found in A Mediation Skills Model to Manage Disclosure of Errors and Adverse Events to Patients Carol B. Liebman; Chris Stern Hyman Health Affairs 23(4):23-32, 2004. © 2004 Project HOPE. Also, Communicating Adverse Events: The Art of Apologizing without Admitting Liability--how to express regret that an injury has occurred even when physician is not at fault.) Some states require disclosure of the error to the patient and that is a good thing.

More and more states are passing 'apology laws' that protect a physician or healthcare providers expression of sympathy, compassion, and apology from being used against them in court. In fact 11 states passed such laws in 2005 alone. Some, like Colorado, Georgia and others have passed full apology laws which include protection of statements of responsibility at the time of disclosure and apology. (I will be including a link here to an article on the need for full apology protection.) Research and healthcare systems that have used that approach report better physician-patient relationships after an adverse event, openness about reporting medical error which can improve patient safety, reduced litigation, increased settlements and contribute to a less adversarial nature of proceedings. Some systems, like the VA Hospital system in Lexington, Kentucky combined apology with offer of compensation where appropriate. They also encourage the patient to consult an attorney to discuss the settlement offer to make sure it is fair. They compensate more patients, yet have signficantly reduced costs.

Patients want to be treated with dignity, respect and care. Honesty in communication about what happened and in expressing the physician's natural sense of care and concern for their patients is part of the healing process for all involved. At some point, the patient should also be informed about the steps that will be taken to try to prevent injuries in similar situations in the future. Patients want to know that it will be addressed and that the physician, nurses, staff, administration are taking what happened seriously and will work to protect other patients from similar injuries.
(We will putting more information on apology in the near future. 4-10-06)

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Part 1:  Preventing Injury -- system vs. individual error, patients as partners in safety
Part 3:  Repair –– compensate and support patient and physician through the process
               Compensation, Deterrence and the Current Medical Malpractice Litigation System, An Ethical Approach to Repair in Medical Injuries
Full article for print (pdf) or (html)

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