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    Apology laws: Talking to patients about adverse events

    The right and wrong way to talk to patients with sympathy

    Let’s say your 53-year-old patient is in the hospital having a basic test—a computerized tomography-guided biopsy of his liver. It should take about an hour, so the technician suggests to the patient’s wife that she go shop at the mall across the street and expect a call when her husband is  ready to go home. Instead, the wife answers her cellphone to hear a nurse frantically telling her to return to the hospital right away. When she does, she learns that her husband has died.

    You’re the doctor who is in the room with this shocked and grieving widow. What do you say to her?

    states with apology laws

    When Doug Wojcieszak, founder of Sorry Works! posed this scenario recently to attendees at a neurologists’ conference, it took a full two minutes for anyone to put a hand into the air. “That’s the problem,” he says. “You don’t have two minutes.”

    For many physicians, their reflex is to avoid the situation and say nothing or as little possible in the aftermath of patient harm. Part of this response comes from a longstanding mindset that physicians should “deny and defend” against the possibility of being charged with any culpability in cases of possible medical malpractice. Until the last decade or so, most lawyers and malpractice insurers promoted this advice.

    Increasingly, however, the healthcare industry is recognizing the benefits of prompt and transparent physician communication with patients and families about bad outcomes. The legal landscape is shifting, too, as at least 36 states now have “apology laws” that prohibit certain statements, expressions, or other evidence related to disclosure from being admissible in a lawsuit. Most state laws keep expressions of empathy and sympathy from being admissible in court, while a few protect admissions of fault.

    Not all experts believe in the efficacy of apology inadmissibility statutes, however. “They’re really not worth anything,” says Victor Cotton, MD, JD, president of Law & Medicine, a malpractice consultancy in Hershey, Pennsylvania. “Most of them would prevent a lawyer from telling a jury that a physician was sympathetic, kind, and compassionate. But plaintiff lawyers don’t use sympathy against doctors,” he says. As for laws that appear to protect physicians against admissions of fault, Cotton says lawyers can “blow a hole in every one of them.”

    But according to Wojcieszak, the strength of apology laws is moot—because they aren’t even necessary for physicians to participate in disclosure. If doctors simply empathize with patients post-event, without admitting fault until an investigation is complete, they don’t have to worry about getting into trouble, he says.

    Next: Expressing empathy but not guilt to patients

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