Center for Patient & Professional Advocacy

Wall Street Journal 05/18/04

Doctors' New Tool To Fight Lawsuits: Saying 'I'm Sorry'

Malpractice Insurers Find Owning Up to Errors Soothes Patient Anger
'The Risks Are Extraordinary'

By RACHEL ZIMMERMAN
Staff Reporter of THE WALL STREET JOURNAL
May 18, 2004; Page A1

BOSTON -- When a medical mishap turned Linda Kenney's routine ankle surgery into a chilling brush with death, the family quickly paid a visit to a lawyer's office.

A jury, the family suspected, would likely show little mercy to the anesthesiologist, Frederick van Pelt, who inadvertently injected a painkilling drug in the wrong place, causing Ms. Kenney's heart to stop. To restart it, doctors at the Brigham and Women's Hospital sliced into her chest and cracked open her rib cage. Ms. Kenney's husband, Kevin, 'wanted to kill the anesthesiologist, flatten him,' says the 41-year-old mother of three.

But then, Dr. van Pelt broke with convention. Against the hospital's advice, he wrote Ms. Kenney a personal letter saying he was 'deeply saddened' by her suffering. Later, over coffee at a suburban diner, he apologized for the terrible accident.

'I found out he was a real person,' Ms. Kenney says. 'He made an effort to seek me out and say he was sorry I suffered.' Moved by the doctor's contrition, Ms. Kenney dropped her plans to sue.

Insurers and hospital lawyers have long discouraged doctors from apologizing to harmed patients for fear that such apologies might fuel lawsuits. The rule has always been 'not to talk about the events to anybody,' says Dr. van Pelt. 'Even a passing comment can be subpoenaed.'

But with malpractice premiums soaring and a national patients' rights movement pushing for full disclosure of medical errors, the industry is rethinking the traditional approach known as 'defend and deny.' Stories such as Ms. Kenney's are persuading a growing number of hospitals, doctors and insurers that apologies may end up saving some of the huge sums paid out to settle disputes over medical care.

Since 2001, prominent institutions from Dana-Farber Cancer Institute in Boston to Johns Hopkins Hospital in Baltimore have made it a policy to urge their doctors to own up to mistakes and apologize. Consultants are increasingly in demand for seminars on how best to deliver lawsuit-deflecting apologies. Two states, Colorado and Oregon, have passed laws specifically saying an apology can't be used against a doctor in court.

At some medical schools, including Vanderbilt University School of Medicine in Nashville, Tenn., courses in communicating errors and apologizing are now mandatory for medical students and residents. Insurers across the nation, including General Electric Co.'s giant Medical Protective unit, are beginning to urge their clients to acknowledge errors and apologize.

Nothing is more effective in reducing liability than 'an authentically offered apology,' says Colorado surgeon Michael Woods, who teaches seminars for doctors and malpractice insurers on the importance of apologizing.

As a legal strategy, apologies remain a big gamble. 'The risks are extraordinary,' says David Sousa, general counsel for the Medical Mutual Group, a North Carolina malpractice insurer. Mr. Sousa is waiting for his state to pass a law granting immunity to doctors who apologize before he recommends his company embrace the strategy.

Yet some plaintiff lawyers say an apology can disarm a malpractice case. Boston attorney Andrew Meyer, who represents victims of medical malpractice, says his job is much more difficult when doctors fall on the sword. 'The hardest case for me to bring is the case where the defense has admitted error,' and apologized to the injured patient, he says. 'If you have no conflict, you have no story, no debate. And it doesn't play well.'

Charles Utley, 50, a former engineer in San Diego, noticed a bulbous protrusion squirting hot fluid from his backside about two weeks after surgery for colorectal cancer in the summer of 2000. He was shocked to learn doctors had carelessly left a sponge inside him. But then, he recalls, a hospital surgeon told him: 'No matter how this happened, I was the surgeon in charge; I was the captain of the ship and I was responsible and I apologize for this.'

An administrator at Sharpe Health Care of San Diego also apologized. Mr. Utley, impressed, didn't bother hiring a lawyer. He settled directly with the hospital for an undisclosed amount which he says was far less than he might have been awarded in court. 'They honored me as a human being,' he explains.

Soaring Costs

Some see the apology as a possible solution to one of the big problems driving medical costs higher. Big jury awards -- such as last year's award of $59.3 million against a California hospital for negligent care that contributed to cerebral palsy in a newborn -- push up health-care costs for everyone. Malpractice premiums rose nationwide by 15% between 2000 and 2002, nearly twice as fast as total health-care spending per person, according to the Congressional Budget Office. In some states, certain doctors now pay more than $200,000 a year for malpractice insurance. Other doctors in high-risk specialties, such as obstetrics, are giving up their practices altogether.

The medical industry has fought these costs on a number of fronts. The industry has lobbied lawmakers, so far unsuccessfully, to cap medical damage awards at $250,000. A handful of institutions are requiring patients to agree to mediation before moving to sue. A strategy of more-open and honest communication by doctors has long been linked to fewer lawsuits. But until recently that hasn't included apologies.

One big shift came in 1999 with the release of a study on what was then a revolutionary concept of 'extreme honesty' at the Lexington, Ky., Veterans Affairs Hospital. After losing two major malpractice suits in the 1980s, the hospital told staff that every medical error must be disclosed fully and immediately. Doctors and staff apologized to harmed patients and their families, and proposed ways to prevent recurrence.

Conventional wisdom suggested the hospital would be hammered with lawsuits. But according to the study published in a 1999 edition of the Annals of Internal Medicine, the hospital's average cost of error-related payouts -- including settlements and a jury verdict -- was $15,622, putting the Lexington VA in the bottom quarter of 35 comparable VA hospitals.

No historical information was available to compare that payout level with levels before the policy. But the relatively low level came as a surprise and captured the industry's attention. That same year, a scathing report by the Institute of Medicine, a panel that advises the government, found that medical errors kill up to 98,000 people a year, putting the spotlight on the industry's policies regarding medical mistakes.

Since 2001, the Joint Commission on Accreditation of Healthcare Organizations, which accredits hospitals, has required disclosure of the most serious errors. The commission discussed the role of apologies but ultimately abandoned it because of concerns they could be used against doctors in court, says Paul Schyve, a psychiatrist who is senior vice president of the commission.

But since then, the insurance industry, which actually carries most of the costs of malpractice suits, has emerged as a force behind the move toward openness and apologies.

'An analysis of our own data increasingly told us that communication is a critical factor in so many of our lawsuits,' says Kathleen Roman, assistant vice president at GE Medical Protective, of Fort Wayne, Ind., a large medical insurer.

Since 2002, Northwest Physicians Mutual Insurance Co., of Salem, Ore., has been offering its doctor clients a seminar on disclosing errors and apologizing, providing financial incentives to those who take the class. A slide in one such presentation reads: 'Apology is psychologically expected when wrong has been done.'

A recent article published in the Annals of Internal Medicine found survey respondents were 1.5 times as likely to seek legal advice when a medical error was not disclosed and no apology was given. But that same article found an apology doesn't always deter suits.

'Some patients simply say, 'I'm glad you apologized, but I also need something to make this better -- I need compensation,' ' says Kathy Mazor, an author of the study and a researcher with the Meyers Primary Care Institute, a Worcester, Mass., nonprofit research center.

Hospitals can't always control what their doctors say to patients. Sue Sheridan, of Eagle, Idaho, says a surgeon at St. Joseph's Hospital in Phoenix, Ariz., never explained, apologized or accepted responsibility for initially telling her that her husband's cancerous tumor was benign, which she says led to a critical six-month delay in his treatment. Ms. Sheridan's husband died in 2002.

St. Joseph's, operated by the not-for-profit Catholic Healthcare West, has a 'Philosophy of Medical Mistakes' that includes apologies. But because the doctors at the hospital are independent contractors, they can't be forced to adhere to those principles, says Hospital Chief Executive Linda Hunt.

Ms. Sheridan, who settled the case with the surgeon just days before the case was scheduled to go to trial, says, 'I cannot think of any other industry where honesty is optional.'

Motivated by Tragedy

Hospitals with the most aggressive disclosure and apology policies tend to be motivated by tragedy. Josie King, an 18-month-old child, died after Johns Hopkins failed adequately to treat her for severe dehydration in 2001.

'I was ready for a bloodbath,' says Sorrel King, Josie's mother. 'Had they tried to sweep this under the rug, we could have -- and we had the resources and I would have -- done anything to destroy them.'

But within days, the director of the Hopkins Children's Center came to the King's home, apologized and took full responsibility for the fatal mistake, Ms. King said. So instead of suing, the family settled for an undisclosed amount and donated much of it to the hospital to spend on improving the safety of pediatric patients.

Johns Hopkins says it formalized a policy in 2001 that was inspired in part by Josie's death. The hospital now urges its doctors to discuss openly errors that harm patients and apologize.

Richard Kidwell, managing attorney for claims and litigation at Johns Hopkins, says he believes the hospital's new openness helped to reduce expense payments related to legal claims by 30% in 2003. Victims and their families 'appreciate that we've been candid and forthright,' Mr. Kidwell says.

Dr. Albert Wu, an associate professor at the medical school at Johns Hopkins, is researching which type of apology is most likely to avert litigation. In a study financed by Johns Hopkins's malpractice insurer, Dr. Wu has videotaped actors portraying doctors as they discuss various errors. In different scenes, the doctors offer either no apology, a heartfelt apology, or an insincere apology. The 200 participants viewing the tapes will be quizzed on which would leave them most likely to sue.

The Cooperative of American Physicians-Mutual Protection Trust, a Los Angeles insurer, requires doctors to take courses in communication and disclosure. But actual apologies must be carefully scripted so that doctors don't take too much responsibility for tragedies. 'Don't say 'I'm sorry I cut the wrong blood vessel,' say, 'I'm sorry you had bleeding,' ' until all the facts are in, says Waldene Drake, the insurer's vice president of risk management.

Because research is still scarce, it will be years before the effectiveness of apologies is proved. But to Dale Ann Micalizzi, whose 11-year-old son Justin died in 2001 after his heart stopped during surgery for an infected ankle, there is no question that patients and their families are owed apologies.

Ms. Micalizzi says she tried unsuccessfully for two years to determine what happened to her son -- but got no answers. In January, she filed a lawsuit in New York state Supreme Court for Schenectady County, which named St. Peter's Hospital in Albany and several doctors -- but spared a doctor at another hospital who apologized and tried to help her find out what happened. St. Peter's declined to comment for this story.

'I had to sue to get answers,' says Ms. Micalizzi. 'You don't take someone's child into surgery and not be accountable when they die.'

Write to Rachel Zimmerman at rachel.zimmerman@wsj.com1

URL for this article:
http://online.wsj.com/article/0,,SB108482777884713711,00.html