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<xTITLE>Apologies and Alternative Dispute Resolution Utility in Medical Malpractice</xTITLE>

Apologies and Alternative Dispute Resolution Utility in Medical Malpractice

by Ava Hacopian
August 2020

Apologies for medical errors and poor medical outcomes are typically omitted from the  practice of medicine in the classic tort malpractice approach to managing communication to the detriment of injured patients. Researchers have noted that atonement and acknowledgement of mistakes made that caused medical injury may improve relationships between medical providers and patients by decreasing anger, increasing trust and aiding in the physical and mental healing process.  Unfortunately, most often the patient is left without an explanation and there is no accountability nor apology from neither the medical provider nor the medical institution where the injury occurred. The void of communication increases hostility, jeopardizes medical recovery and reduces cooperation in medical settlement and dispute resolution. Medical providers cite fear of potential litigation as a barrier to disclosure and rendering an explanation and apology. Studies have also noted provider communication, educational and medical provider personality-related challenges contributing to failure to take responsibility and lack of accountability for medical errors.

Introduction: Ethics and Medicine

Ethical approaches to the disclosure of medical errors in clinical practice are guided by the American Medical Association (AMA) since the adoption of a Code of Medical Ethics at the founding meeting in 1847(AMA, 2007). This code specifies that a physician is ethically bound to disclose to patients “all the facts necessary to ensure understanding of what has occurred” when patient experiencing medical complications resulting from a physician’s error, mistake or judgment occurs (Bender, 2007.  Berlinger (2005) notes that, as of the publication date of her book, After Harm: Medical Error and the Ethics of Forgiveness, more patients die from medical mistakes than from cancer, motor vehicle accidents and infections.

Apologies and Military Reparations

The tragic death of nine Japanese civilians, including high-school students and their teacher on a fishing trip aboard the Ehime Maru fishery ship off the coast of Hawaii due to an accidental sinking of their vessel during U.S. Naval exercises in January 2001 and the U.S. military envoy that issued a face-to-face apology illustrates the power of an apology. President George W. Bush expressed public apologies to the Japaneses government and dispatched naval command to Japan for personal apology, while issuing monetary reparations, compensation to the families of the fallen, and commissioning the salvage of the sunken ship along with establishing a memorial for the incident (French, 2001). Admiral William J. Fallon, the vice chief of naval operations for the United States Navy issued a formal apology to Japan on Feb. 27, 2001 (youtube link: https://www.youtube.com/watch?v=ypyoMKzfhw4).

Atonement for Aboriginal Dislocation and Cultural Dislocation

Both Canadian and Australian governments have rendered formal apologies to aboriginal peoples of their respective countries for the forced assimilation of native children into Westernized homes of European immigrants in order to re-educate children and strip them of their national identity. Canadian Prime Minister Stephen Harper rendered an apology to the aboriginal peoples of Canada for the forced cultural dislocation, assimilation and abuse, during a session in the Canadian House of Commons on June 11, 2008, Parrott (2014). The tragic accounts of the forced residential schooling of indigenous children is documented (https://www.youtube.com/watch?v=vdR9HcmiXLA).  The Australian government followed suit with similar acknowledgement and atonement (Johnston, 2008). 

Utilizing Principles of Restorative Practice in Medical Apologies

Braithwaite (2002), emphasizes the importance of restorative justice through principles of repair, transformation and empowerment in facilitating reparations between groups when atonement for exploitation and misconduct. Bringing all the stakeholders involved in the dispute or injustice together to collaboratively bring about a solution to the harm. The victim-offender mediation can be traced back to the traditions of the indigenous peoples around the world, particularly in New Zealand and Australia. Both sides to a dispute bring advocates from their community to represent both the victim and the offender in order to discuss the offense and initiate reparations. For instance, Dr. Braithwaite emphasizes rehabilitation programs for those committing offenses and these principles of restorative justice likewise can apply to patient-medical provider relationship. 

Where victims of medical errors may not have a resources, advocates or a community for representation, the respective hospital case management committee can offer support and accept responsibility through prompt acknowledgement and atonement from both the provider and the institution involved in an application of restorative justice principles. 

Poor Communication and Malpractice Litigation

Lester and Smith (1993) studied an audience that observed three different scenarios of a doctor communicating with a patient regarding an adverse outcome due to medical error. Patients that were not notified of the medical error and the factual circumstances, not offered a provider-patient feedback session or given an apology increased the litigious intentions of the audience. In contrast, doctors that thoroughly explained the causes of the unexpected outcome and admitted their fault, and solicited patient feedback and discussion garnered much less bias toward legal intervention. The study supported the premise that medical provider honesty, transparency and efforts to engage patient discussion and involvement may diminish the risk of litigation.

Levinson, et al (1997) demonstrated that quality of care and thorough documentation may not necessarily translate into decreased risk of litigation, while in contrast ineffective and paucity of patient-provider communication bears a direct correlation to this risk. A patient’s lack of perceived honesty and transparency about the medical provider more directly to bore a risk of legal action. Gallagher, et al (2003) determined through focus group studies that there is a mismatch between what patients expect and what doctors deliver when medical errors occur. 

Patient expect emotional support and forthright and honest communication, and information on how to mitigate the error’s consequences (Gallagher, 2003). By contrast, medical providers may tend to admit that “an error occurred” without a context and explanation as to how it and when it transpired and without an apology and expressed regret for its occurrence. Medical providers often tries to describe the medical mishap as an event separate and foreign from his or her own actions in a detached effort to separate oneself from one’s feared mistakes. Thus, the patient is left without a detailed explanation and admission of fault and lacks a viable plan for restoration and reparation from the offending medical provider.

Alternative Dispute Resolution in Medical Tort Reform

The landmark Medical Care Availability and Reduction of Error Act of 2002 in the state of Pennsylvania established a mandate of statutory duty by hospitals in the notification to patients or patient’s family of a “serious event” in writing within a 7-day period. The imposed hospital disclosures instituted by the new notification laws opened discussions between healthcare providers and patients regarding adverse events and errors. These statutory laws of mandated disclosure supported the efforts of the American Medical Association Council on Ethical and Judicial Affairs, the American College of Physicians Ethics Manual and the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) in their joint quests to mandate transparency and disclosure in healthcare delivery. In 2001, the Joint Commission of 

Accreditation of Healthcare Organizations, (JCAHO) issued the first nationwide disclosure standard on error disclosure, taking responsibility, and apologizing (Gallagher, et al, 2007).

Mediation as an alternative dispute resolution option may serve as an intermediary between providers, hospitals and patients and their families in communicating the concerns of the patient to the providers, while managing the communication barriers that can arise from litigation-fearing medical establishment. Mediators and arbitrators can act as neutral third parties to hear both the patient and provider viewpoints and accounts of occurrences to mitigate court costs, delays and escalations (Balcerzak and Leonhardt, 2008).

Why Resist an Apology? Barriers to Atonement for Medical Errors

Fear of legal liability floods the stream of reasons preventing many from issuing a simple apology. The appearance of vulnerability and less-than perfection in one’s profession, in addition to a blow to one’s self-esteem, as seen through the lens of a medical professional are other factors (Kaljian, et al, 2006). Bender (2007) noted that the American Medical Association Code of Medical Ethics dictates that “when a patient suffers significant medical complications that may have resulted from the physician’s mistake or judgment, the physician is ethically required to disclose to the patient all the facts necessary to ensure understanding of what has occurred”.. and to emphasize that “a physician’s concern about legal liability that might result from full disclosure should not affect his or her decision to deal candidly with a patient.” He notes that the AMA Code of Ethics regarding the informed disclosure should override and outweigh a physician’s concern about legal liability about disclosing physician and hospital medical errors.

Beckman, et al (1994) note that threatened law suits do not always result from adverse outcomes and not all adverse outcomes results in lawsuits. However, the decision of the patient or patient’s proxy to pursue litigation was frequently associated with “a perceived lack of caring and/or collaboration in the delivery of health care” by the medical provider(s) at the core of the complaint.

Gallagher, et al (2006) noted that physicians studied in the U.S. and Canada similarly agreed that disclosing a serious medical error (74% surveyed across both countries) would be difficult, with over 98% of those surveyed supporting transparent reporting of serious errors to patients. Similarly, Gallagher, et al (2006) noted that across these two countries physician 

responses varied widely in their proposed methods for disclosing errors to patients. Many cited the relative lack of experiences with disclosure methods during training, thus indicating that disclosure communication training should be taught in medical education.

Cognitive Dissonance and Reluctance to Admit Failure

Cognitive dissonance in the medical provider’s reconciliation of professional vulnerability and difficulty accepting that one has injured another, while holding oneself in high esteem for perceived professional prowess also serves as a barrier to patient atonement (Tavris, et al, 2007).

In the article, The Heart of Darkness: The Impact of Perceived Mistakes on Physicians, Christensen, Levinson and Dunn (1992) explored physician’s emotional responses and their beliefs in coping with mistakes. The severity of emotional distress from acknowledging mistakes was correlated with perfectionism, competitiveness engendered during medical education and a general inability to accept facts that clash with illusions of superiority. Likewise, Hobgood, et al (2005) in a study of residents training in the field of emergency medicine noted that errors resulted in negative emotions and inadequate disclosure, reinforced by self-perceptions of inadequacy within the training environment. White, et al (2011) have similarly explored barriers to the disclosure of harmful errors to patients by medical resident trainees and the deficits in the education of apology practice for open disclosure of medical errors cuts across different specialties of training.

Wu (2000) in his article, Medical Error: the Second Victim, also noted that “there is no place for mistakes in modern medicine,” and with an “expectation of perfection” many providers, to include physicians, nurses, pharmacists and other medical staff, may feel compelled to hide errors to live up to the expected standard. The hiding of errors diverts needed attention from systemic errors that when corrected may decrease the risk of many medical tragedies. Nevertheless, the physician and other health professionals bear an ethical responsibility to disclose and report errors to the patient.

Gender Differences in Rendering Apologies

Gillies, et al (2011) discovered a gender-bias in a study of apologies authored by medical students taking a professionalism course at a medical school. Data from the survey indicated that apologies written by females received higher ratings than those penned by males. Similarly, the study found that apologies were not weighed with the same level of importance by physician peers as by patients, implying that the act of apology as a greater weight to the afflicted patient.

Generational Barriers to Apologies

Cohen (1999) in his article, Advising Clients to Apologize, notes how different we counsel children and adults to approach atonement for personal fault. While we may advise children to confess and make reparations for injury, as adults we learn to dodge responsibility and levy accountability to others. The legal environment supports this attitude by discouraging admission and atonement for responsibility, while supporting a “wait and see” approach with denial of responsibility for one’s own misconduct. He further emphasizes that failing to apologize can be perceived as a deeply disrespectful “second injury” and that some injured parties “attach far more value to an apology than to compensation for their injuries.” 

Cohen further notes six general benefits of early apologies: 1) diffusing plaintiff anger from the perceived personal dislike by the medical provider/offender to the offended patient or the , 2) preventing “insult to injury” of suffering the appearance of disregard from a “silent” medical provider, 3) enhancing communication to aid in reparations and settlement negotiation 4) enhancing the medical provider’s spiritual and psychological growth, 5) repairing damaged relationships and 6) promotes strategic and distributive benefits, when trying to obtain sympathy from a judge or jury.

Malpractice Insurance Barriers to Apologies

Cohen (1999) also notes that some malpractice insurance carriers bar the defendant from assuming liability, as a condition precedent to the contract of obtaining defense for tort malpractice, in order to maintain leverage in bargaining power. However, courts have determined that a good faith apology from the offender would not likely affect a case where the evidence of the fault would be discovered during trial, and that the intent of the accused could be perceived as an effort to be forthright and to mitigate damages. 

The Utility of Apologies

Robbenolt (2009) notes that aside from the acknowledgement and accountability displayed by the provider, apologies convey a signal to both parties that steps will be taken to 

insure that the same transgression will not be repeated. Furthermore, the author explored the influence of apologies on the perceptions of disputants and found positive effects of atonement on settlement discussions favorable to both parties, particularly the medical provider (Robbenolt, 2005, 2006).  Robbennolt also contrasts the quality of the apology to emphasize that partial sympathy-expressing apologies had less of a profound effect on willingness to settle than a sincere, heartfelt expressions of atonement by the medical provider that acknowledged accountability and responsibility for medical error (Robbennolt, 2003).

The act of admitting responsibility for a medical error restores trust, quells negative emotional responses and bestows respect and autonomy to the vulnerable patient. Curlin (2005) notes that the importance of gaining the “perspectives of those who suffer,” is to understand that medical error disclosures need to be accompanied by genuine apologies acknowledging provider responsibility for error, not just expressions of condolences. 

Apologies and Communication Barriers by Medical Specialty

Gallagher, et al (2006) noted that apologies vary according to medical specialty. Surgical specialists were found least likely to apologize in contrast to general medicine providers. In a study exploring how surgeons disclose medical errors. Chan, et al (2005) investigated barriers in physician communication regarding medical facts and causes of error. Surgical specialties had particular barriers to using the words “mistake” and “error” which were mentioned in only about 57% of patient conversations. Only 65% of conversations acknowledged error responsibility, and less than on- half of (47%) of surgeons apologizing for medical errors committed.

As noted by Frenkel and Liebman (2004) “coming clean [for one’s medical mistakes] is hard” and when done disrespectfully with denial, can make things worse.

Apologies and Financial Benefits to Society

Leape, et al (2005) have observed that apologetic medical professionals reduce the legal system’s backlog of long-awaited resolutions to tort malpractice cases. This appears to be accomplished by reducing the court’s role to compensate the injured through character and professional defamation of the medical professional as a traditional tort case resolution.

Mazor, et al (2004) explored patient attitudes toward medical errors that ranged from minor to major. Each medical error type was accompanied by either a nondisclosure expression of regret or a full apology and complete acceptance of responsibility by the doctor for a clinical outcome. The results indicated that full disclosure was the preferred method of communication for errors in all circumstances, however the relationship of communication preferences to litigious tendency was not ascertained. 

Similarly, Mazor, et al (2006) studied factors that influence how patients respond to disclosure of medical errors and determined that the greatest impact on procuring a positive physician-patient relationship was the full disclosure of medical errors, strikingly greater than the effect of waiving patient medical costs. Witman, et al (1996) likewise determined through patient surveys that an acknowledgement of even minor errors is expected and desired by patients, and related to a reduction in punitive actions.

Medical Apology Bills in Legislation

Actor James Woods lost his brother, Michael Woods allegedly to mismanagement within a hospital in Rhode Island that rendered his care. The CEO of the hospital, Sandra Coletta, apologized as part of the lawsuit settlement in 2006, with an institute in his brother’s name launched as part of reparations. Mr. Woods advocates for a bill that would make the apologies of health-care practitioners inadmissible in a malpractice suite, one of the central fears of practitioners and their legal counsel about rendering formal apologies (Latner, 2012). 

Wei (2007) similarly explores the possibility of allowing defendants to exclude from liability lawsuits any statements of sympathy made after medical errors. Barriers of physician professional norms of refraining from apologies may pose setbacks to instituting this practice.

Zimmerman (2004) notes that the Oklahoma State House Bill 2661, a comprehensive tort reform bill known as the “I’m Sorry” bill, reduces “frivolous” medical litigation, establishes a cap on non-economic damages, and adopts a rule that would allow a health care provider to express an apology without the statement being used against the medical provider in court.

Facilitating Claim Settlement and Restitution

Acknowledging medical errors and offering apologies serves to reduce preventable litigation, and facilitate resolution through emotional healing and more expeditious medical claim settlement. Kraman (2001) notes that studies indicate that an apology, full disclosure and fair compensation has counterintuitively shown to protect all parties at a lesser cost when a 

patient is harmed by negligence or medical error. Furthermore, Kraman (1999) also documented an example of a more proactive policy in medical error and negligent cases that could mitigate the risk of litigation, as demonstrated by the efforts of the Veterans Affairs Hospital of Lexington, Kentucky in 1987. After years of losing millions in malpractice cases, the hospital management instituted fact-finding committees to make the process of investigation of errors more transparent to its patient constituents and their families. The result was a more equitable settlement with lower settlement claims brought about by full disclosure, with a windfall decrease in judgments from 1.5 million dollars per year as of 1987 to a total of 1.3 million dollars over the course of seven years with an average payment of $15K per claim.

Alternative Dispute Resolution as an Alternative to Litigation

James K. Stewart, the Director of the National Institute of Justice noted retired Supreme Court Justice Sandra Day O’Connor’s observation that “The courts of this country should not be the places where the resolution of disputes begins. They should be the places where the disputes end – after alternative methods of resolving disputes have been considered and tried.” Stewart further elaborates that in 1981, the Special Committee on Dispute Resolution of the American Bar Association (ABA) noted that encouraging the systematic referral and screening of disputes to the corresponding resolution facilities within a community would expand the paths of justice beyond the courthouse through mediation, arbitration, consumer panels and even social services (Stewart, 1986).

Mediation between patients and medical providers to meet and discuss the injuries that occurred with transparency and honesty facilitates the healing process through communication and collaborative care plans for recovery and rehabilitative processes to restore health.

Typically after a medical injury occurs, there is silence that further separates the provider from his primary duty of care to the patient, which further contributes to harm and barriers to dialogue.

This barrier is further exacerbated by malpractice insurance carrier and hospital risk management teams with “gag orders” set in place that restrict medical staff communications after a medical error has been committed.

The state of Pennsylvania became the helm of the progressive stance on the statutory duty of hospitals to disclose medical errors to patients in writing as of 2002 (Liebman and Hyman, 2004) and these advancements improve litigation risk management and patient safety in the inpatient setting (Pennsylvania, 2002).

Lessons learned from ‘Damages’ in Medical Tort Malpractice

Author Barry Werth (Damages, 1998) illustrated the seven-year nightmare of one family’s experience in the medical malpractice world and the teaching value of how a medical tragedy can inflict devastation on the victims, their families, as well as the medical staff involved. Werth noted that medical malpractice suit participants cannot be simplified in a “good vs. evil” characterization (Daily, 2004). Nevertheless, Easton, (2004) and other law school instructors have applied the tort malpractice lessons of the case illustrated in Werth’s textbook to demonstrate the importance of understanding both sides of the legal equation in a medical malpractice injury suit.

Future Avenues of Research

Exploring the benefits of forthright unsolicited apologies offered by the medical provider immediately after a medical error is committed, rather than waiting for a threat of a lawsuit would be a worthy research area in order to determine whether early atonement can mitigate suits and aid settlement.

Prompt implementation of restorative measures to rehabilitate medical tort victims may hasten emotional and physical recovery from medical injury, while simultaneously repairing relations between patients and their medical providers. The reparations between provider and patient can restore trust and encourage a teamwork bond between these two individuals that will further improve the patient’s likelihood of recovery. An early provider apology and admission of responsibility may also mitigate damages and reduce the risk litigation.

Conclusion

Patients and physicians alike would benefit from open and honest communication. Accountability on the part of healthcare professionals in the form of sincere apologies and assurances that errors to the detriment of the patient’s health and safety are acknowledged and reparations made early in the resolution process improve mental, emotional and physical patient recovery. Enacting this responsibility also restores provider-patient communication and relations that encourage a teamwork relationship toward the healing of the patient.

Embracing responsibility and guiding patients and families affected by injuries to support through long-term medical consequences is central to the duty of care.  Hospitals can institute alternative dispute resolution practices over the traditional tort malpractice settlement to reduce cost, length of litigation and strive to humanize the settlement process for medical injury.  Physicians and other medical practitioners have a responsibility to maintain the code of ethics in medicine alive and well while optimizing patient healing at all times. Medical providers owe patients honesty, sincerity and complete disclosure as a duty of care.  Implementing a restorative system supporting hospital and provider commitment toward prompt disclosure, reconciliation and accountability for torts injuries is critical to quality care. 

ENDNOTES

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Biography


Ava Hacopian is a family practitioner working in medical administration and iscurrently completing a Masters of Arts in Negotiation, Conflict Resolution and Peacebuilding at the California State University Dominguez Hills under Department Chairman and Graduate Advisor, Dr. Brian Jarrett, J.D., Ph.D.



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