Risk Management
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“Apology” Laws May Not Always Protect You
It is only natural that your first instinct will be to comfort your patients and their families and loved-ones when medical or surgical procedures do not turn out the way you had hoped or expected. Be careful to do so in a planned and well thought-out manner in order to protect yourself.
A recent precedent-setting case in which an orthopedist was sued and found liable to pay $3 Million for wrongful death is a reminder of the limits of so-called “no-fault apology” laws.
In this case the doctor indicated to the patient’s family that he had “nicked an artery and took responsibility for it.” The patient died after a severed left common iliac artery. During the trial the defense tried to keep the comments out under the states “apology” law which protects physicians who use expressions of apology or sympathy. The court ruled the statement was not an apology but an admission of guilt and an arguably defensible case was ruled in favor of the plaintiff at trial and upheld during appeal.
State statutes that bar the use of expressions of apology, sympathy, or commiseration will not necessarily protect you from statements you make to patients after complications or maloccurrence.
Not all errors are medical malpractice. Do not assume that because something went wrong you will be found liable or negligent. A multi-million dollar malpractice loss can have a serious effect on the insurability of your practice going forward so stick to the facts, avoid admissions of guilt, and follow these guidelines when facing this type of circumstance:
1. Chart Chart Chart everything that you do and say in treatment of patient. This is so much more important when known complications exist.
2. There are going to be bad outcomes with some of your surgeries. Be honest and forthright and do not delay your communications with the patient or the family when disclosing complications.
3. Be very careful to convey compassion for patient’s and family’s pain and suffering by showing sympathy with following type of phrase “I am sorry that you…” rather than “I am sorry that I…”
4. Avoid speculation about the role you or other providers played in the outcome.
Dealing with unanticipated outcomes is one of the most difficult aspects of medical practice, especially if an error contributed to the result. While many physicians want to talk to their patients about adverse events, they may hesitate to do so for a variety of reasons. OMIC has always encouraged its policyholders to communicate honestly and compassionately with their patients about unanticipated outcomes. In order to provide more guidance for ophthalmologists on how to handle these difficult situations, OMIC offers these risk management recommendations.
Please click here to access a complete OMIC guide for Responding to Unanticipated Outcomes.
NOTE: OMIC’s ophthalmic risk management hotline receives thousands of calls each year from policyholders and their employees in every region of the country. Policyholders should let their staffs know that any time they encounter a difficult situation, they can call an OMIC Risk Manager for help. OMIC’s risk management hotline is confidential from other OMIC Departments and Risk Management staff does not discuss any issues raised through the hotline with anyone else..Records are kept within a secure document imaging system and access to files are limited to Risk Management/Legal staff only. Policyholders should encourage staff members to use this policyholder benefit whenever needed.
Call (800) 562-6642 then press 4.
