U.S. states are making it easier for doctors to say, 'I'm sorry' when something goes wrong

PROVIDENCE, Rhode Island: The problem was obvious to anyone who looked at the middle-aged woman: After surgery to correct a drooping eyelid, her eyelid was too high. After a second operation, it was too low.

Dr. Michael Migliori had the delicate task of telling the woman she needed a third operation. He began with two words that could make a defense attorney's head explode: I'm sorry.

"In this state," Migliori said in a recent interview, "that can be used essentially as an admission of guilt" if a patient files a malpractice suit.

Lawmakers in Rhode Island and eight other states are now considering bills that would allow physicians to apologize when things go wrong without having to fear that their words will be used against them in court.

At least 27 other states have already passed similar laws, nearly all of them in the past four years, according to the American Medical Association.

The wave of "I'm sorry" laws is part of a movement in the medical industry to encourage doctors to promptly and fully inform patients of errors and, when warranted, to apologize.

Some hospitals say apologies help defuse patient anger and stave off the lawsuits that have helped drive up doctors' malpractice insurance rates. In turn, say medical and insurance officials, doctors pass on those fees to patients, further raising the already high cost of health care in the United States.

At the same time, many doctors are trained or warned never to admit errors in case a patient sues.

Migliori, an ophthalmic plastic surgeon and lobbyist for the Rhode Island Medical Society, said his patient's drooping eyelid was fixed in the third operation and he wasn't sued. He said that surgical complications sometimes occur and that he doesn't believe he did anything wrong.

The surgeon said that he realizes an apology could come back to haunt him but that he considers saying "I'm sorry" essential to preserving the bond of trust between doctor and patient.

Otherwise, "patients think I'm hiding something, I must have done something wrong," he said.

Apology laws vary by state. In Arizona, Connecticut, Idaho, Maine and 11 other states, doctors can safely apologize to or commiserate with patients or their families about an undesirable or unexpected outcome, according to the AMA.

A law in Vermont exempts only oral statements of regret or apology, not written ones. Illinois gives doctors a 72-hour window to safely apologize after they learn about the cause of a medical mishap.

Providence lawyer Steven Minicucci, who handles malpractice suits, said displays of compassion are rarely useful in building such cases. But an apology and an admission of error could be key evidence. He opposes the Rhode Island legislation.

"I like to call it the 'I'm-sorry-I-killed-your-mother'" bill, Minicucci said. "If a doctor comes out and says something like that, he shouldn't be able to immunize himself against statements like that by couching it in an apology."

Trial lawyers also call Rhode Island's bill unfair and overly broad because it could bar some internal hospital reports on medical errors from becoming evidence.

Boston-based ProMutual Group, which insures 18,000 doctors, dentists and health care facilities in the Northeast, warns its clients against apologies that admit guilt — even in states that have laws protecting doctors who say they are sorry.

It distributes a tip sheet cautioning doctors against uttering the words "error," "mistake," "fault" or "negligence."

"We encourage physicians to apologize about the outcome, not necessarily for any error that may have occurred," ProMutual spokeswoman Nina Akerley said. "Apology is not about confession."

source : www.iht.com