Today we want to discuss one powerful potential benefit of complete disclosure and full apology following a preventable adverse healthcare outcome, as your organization’s first and perhaps best line of defense in preventing unnecessary litigation.
It is widely accepted that disclosure and apology following a preventable unanticipated adverse medical event is morally and ethically “the right thing to do.”
A complete disclosure is a process that initially begins with an acknowledgement that an unexpected healthcare event occurred, which then evolves into a more detailed communication. This process provides patients the opportunity to understand the medical outcome – the what, how, and why.
Research suggests that following a preventable unexpected adverse event, patients want an apology, an explanation of what happened, and someone to take responsibility. A full and true apology incorporates three parts: (1) taking responsibility for what happened, (2) expressing sincere regret for the damage caused, and (3) an offer to make amends.
When handled appropriately, disclosure and apology may bring healing to both the patient and staff involved, and furthers the reputation of the institution by emphasizing that it cares about its patients. An ongoing benefit is improving patient safety in a just, fair, and non-punitive culture.
Disclosure and Apology Laws
To advance the principles of patient safety, many states have enacted disclosure and apology laws. Unfortunately, many “Disclosure and Apology Laws” intended to encourage transparent communication by preventing the use of disclosure and apology discussions as evidence to prove liability in a lawsuit, have not relieved the anxiety surrounding these discussions.
For example, California Evidence Code Section 1160 states that communications
“…expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action.”
However, the law goes on to state that “A statement of fault, however, which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section.”
This means the phrase “we are sorry” is inadmissible to prove provider liability. But, accompanying statements such as “we caused this injury” may be used to prove provider liability. The ambiguity as to what distinguishes a statement of “sympathy” or “benevolence” and a “statement of fault” means that sometimes disclosure and apology communications are often incomplete and ineffective.
Regardless of the law, patients and families deserve respectful treatment, especially following an adverse event.
While we acknowledge the concern that disclosure and apology discussions may invite litigation, we believe that incomplete disclosure and apology magnify the potential for lawsuits and leaves the patient without resolution. The difference between a full and an incomplete apology is significant and can either bring healing and understanding or anger and confusion. A patient may perceive an incomplete apology as insincere and sue seeking access to obtain seemingly hidden information. In such circumstances, the opportunity to keep the patient’s trust is often forever lost.
Effective disclosure and apology discussions require clarity, conviction and courage, and offer an opportunity to heal for all involved: the patient, families, and care teams.
When is Disclosure and Apology Appropriate?
So how should a medical facility decide whether a full disclosure and apology is appropriate? Consider adopting the following approach by classifying unanticipated outcomes into two categories:
- Non-Preventable Outcomes: If your medical-legal review concludes the outcome was a non-preventable complication of the care received → communicate in a full and compassionate manner the information regarding the reason an outcome occurred and your conclusion → defend the institution firmly in the event a negligence claim is made.
- Preventable Outcomes: If your review concludes (1) a violation of the standard of care occurred and (2) the violation caused the outcome → an early initial acknowledgement should evolve into a complete disclosure and full apology → resolve the matter fairly with the patient and or their family.
In our experience through the PEARL program (Stanford’s early communication and resolution program), the vast majority of unanticipated treatment outcomes fall into the first category. But the less common second scenario presents us with an opportunity to achieve just resolution. To date, we have observed no evidence to suggest that complete disclosure and full apology (responsibility, regret, resolution) lead to more lawsuits.
In fact, early evidence suggests that Stanford’s PEARL program has resulted in significant savings in indemnity payouts, suggesting that early communication and resolution programs are not only the right thing to do, but make financial sense too.
By Abdul Hamamsy & Leilani Schweitzer
Abdul currently serves as Assistant Vice President of Claims and Litigation of The Risk Authority and as Senior Litigation Specialist at Stanford University Medical Center. In his current role, Abdul’s primary responsibility is investigating and resolving patient claims. Abdul uses his combination of medical training and legal skills critical in reviewing unanticipated adverse treatment outcomes pursuant to Stanford’s Process for Early Assessment, Resolution and Learning (PEARL). Abdul received his JD degree from Santa Clara University School of Law and is admitted to the California bar. Abdul holds an MPH from Oklahoma University Health Sciences Center. Abdul also received his MBBCh from Cairo University Faculty of Medicine and was a licensed physician in Egypt.
Leilani serves as a Patient Liaison for Stanford University Hospital and Clinics’ and Lucile Packard Children’s Hospital at Stanford’s Risk Management. Leilani did not choose a career in health care, it chose her. Nearly nine years ago her son died after a series of medical mistakes. Leilani uses her own experience with medical errors to navigate between the often insular, legal and administrative sides of medical error; and the emotional side of the patient and family experience. Her work at Stanford gives her a unique view of the importance and complex realities of transparency, disclosure and apology.