When Doctors Say, "We're Sorry"

By Daniel Eisenberg

It's easy to understand why Trish and Andy Olson initially considered suing. But more than money, what the suburban St. Paul, Minn., couple wanted from the hospital was a genuine apology. Their son Owen, 7, born with spina bifida and a range of other birth defects, had already endured more than 40 operations by the time he was taken to the Children's Hospitals and Clinics of Minnesota for treatment of a suspected infection last fall. Because the staff on duty that night forgot to attach a catheter to Owen, doctors ended up having to take emergency action several hours later, first using a needle to drain his dangerously full bladder and then, after his bowel was punctured during the procedure--a known risk--surgically repairing the damage.

Although the little boy escaped with no permanent damage, his parents' faith in the hospital was not easily restored. But then something unusual happened: the administrators and the family's doctors said they were sorry, explained how the error happened and offered to help with Owen's growing medical bills. The Olsons soon gave up thoughts of legal action. "They have been wonderful about everything," says Trish. "We were angry, but we're not anymore." Dr. Phil Kibort, the hospital's vice president of medical affairs, says, "When I went to medical school, I didn't plan on doing this. But I want [patients] to feel they can trust us."

At a time when hospitals and doctors are desperate to reduce the rising costs of malpractice insurance and litigation, apologizing for medical mistakes may seem to some like legal suicide. But to a widening coalition of players on all sides of the issue--from doctors, hospital administrators and insurance executives to patient advocates, politicians and even trial lawyers--it may actually be a step in the right direction. Since many of these players believe malpractice lawsuits are motivated as much by feelings of frustration as by the almighty dollar, in their view, honesty may indeed be the best policy.

To help encourage openness, over the past few years, such states as Florida, North Carolina, Missouri, Illinois, Colorado, Arizona and Oregon have passed bills under which a doctor's apology for a medical mistake or expression of sympathy is inadmissible in civil court. A few like Pennsylvania are even mandating the prompt, formal disclosure of any such errors to patients and state authorities. Legislation has been introduced in Congress to help set up similar pilot programs in other states, and President Bush recently signed a bill establishing a confidential and voluntary system for reporting medical errors. In addition to giving people less motivation to sue, supporters argue, fuller disclosure will help reduce malpractice in a more fundamental way by helping health-care professionals learn from mistakes so fewer preventable errors occur.

Not everyone is waiting for the law to change. More and more hospitals are following the lead of pioneers like the Veterans Affairs Medical Center in Lexington, Ky., and Johns Hopkins in Baltimore, Md., in establishing formal policies requiring medical staff to promptly admit and apologize for mistakes. Having adopted that approach, the University of Michigan Health System in Ann Arbor, which encompasses the university medical school, three hospitals and numerous other health facilities, has seen its annual number of malpractice claims and lawsuits drop almost 50%, from 260 in 2001 to 140 in 2004, and its average legal expense per case fall at virtually the same rate, to $35,000. Dr. Darrell (Skip) Campbell, a transplant surgeon and the chief of staff, says the new openness has the added advantage of allowing doctors to explore what happened. "The natural reaction when something goes awry," he says, "is to sweep it under the rug. [But then] you don't find out what the problems are."

Proponents say an apology may take some of the bitterness out of what has become an all too adversarial relationship between doctors and patients, making malpractice victims more amenable to a negotiated settlement, which is typically less costly and time consuming than a lawsuit. On a broader level, having a policy of apologizing may help a hospital's reputation or credibility. Says Robert Lord, chief legal officer for Martin Memorial Health Systems in Stuart, Fla.: "When we go into litigation and deny liability, people tend to take that more seriously."

When it comes to malpractice, the medical community seems open to experimentation. Limits on damages for pain and suffering, like the $250,000 federal cap that President George W. Bush has tried in vain to get through Congress, are increasingly seen as little more than a Band-Aid: recent studies cast serious doubt that such caps would make malpractice-insurance premiums cheaper. Meanwhile, long-term options, like a no-fault system with specialized medical courts and expert judges, are still largely in the theoretical stage.

Skeptics may think malpractice litigants are interested in just money, but there is at least some evidence to support the notion that it's also about emotional redemption. A series of academic studies over the past decade have shown that in many cases, victims are more likely to sue their medical provider if they feel he or she has not been sufficiently compassionate and communicative. Although she's not a scientific researcher, Jennifer Dingman of Pueblo, Colo., knows that firsthand. Soon after her mother died in 1995 at age 78 as a result of a series of misdiagnoses and medication errors, Dingman started a patient-advocacy organization called PULSE, or Persons United Limiting Substandards and Errors in health care. "In every scenario, people who have filed lawsuits wish they hadn't had to go through this," she says. "One hundred percent of the time, we hear, 'If only the doctor had apologized.'"

For many patients, legal action is also the only way to find out what really went wrong. "Most people don't want to sue, but they feel pushed into it," says Doug Wojcieszak, an activist who helped promote what's called the Sorry Works! legislation in Illinois; Doug's brother Jim died in 1998 of multiple heart attacks after a Cincinnati, Ohio, hospital mixed up his records with those of his father, who had been there six months earlier, and misdiagnosed Jim's heart condition.

Only an estimated 2% of negligent events in hospitals result in malpractice cases, so it is entirely possible that if more medical professionals admit errors, the number of potential litigants could skyrocket. David Studdert, a professor at the Harvard School of Public Health, firmly supports increased transparency but nonetheless thinks it will increase litigation, for the simple reason that "now most people don't even understand that they have been injured due to an error."

And not everyone believes shielding doctors after they say sorry is a fair outcome. In many critics' minds, an apology isn't worth much if the person doesn't have to worry about or suffer the consequences. Apology laws, they complain, could just usher in an epidemic of playacting. "To think I should give up my rights so that you can say you're sorry is insulting," says Patti O'Regan, a nurse practitioner in Port Richey, Fla., whose mother died in 1999 from a reaction to pain medication. Many of the states that have passed laws have tried to deal with that issue by providing protection only for general apologies that express sympathy, not for outright admissions of guilt. Colorado's two-year-old statute is a notable exception, covering outright admissions of fault or liability as well--which doesn't sit well with some of the state's malpractice attorneys. One of them, Natalie Brown, says she is waiting for a test case to challenge the law's constitutionality in the Colorado supreme court.

Regardless of the law, it is still no small feat to persuade doctors to give up the defensive mind-set that anything they say will be used against them. No matter how many times doctors, hospital administrators, attorneys and malpractice insurers are told so, they still have a hard time believing that there has yet to be a case in which an apology was used as evidence and made a difference in the outcome, as many supporters of the movement point out. Even if they are sold on the idea, many doctors still have to work on their bedside manner. That's why medical schools like Vanderbilt are increasingly requiring communication classes that include lessons in how best to express regret, and why similar seminars for more seasoned physicians are drawing crowds. At the recent graduation ceremonies for the State University of New York's Downstate Medical Center, its president, John LaRosa, offered some parting advice to the graduates: "'I'm sorry.' Say the words. Mean them. And move on." For now, at least, it's clearly not that simple. --Reported by Massimo Calabresi/ Washington, Elizabeth Coady and Leslie Whitaker/Chicago, Rita Healy/Denver and Michael Peltier/Tallahassee

With reporting by Reported by Massimo Calabresi/ Washington, Elizabeth Coady, Leslie Whitaker/Chicago, Rita Healy/Denver, Michael Peltier/Tallahassee