OAJ Blogs

Posted on: Oct 14, 2020

On behalf of The Eisen Law Firm

report written by Miranda Hester and published in Contemporary Pediatrics in October 2019 discussed an interactive forum for physicians where the main subject was what physicians should do and not do when they make a preventable error that causes injury to a patient. The report referred to such mistakes as potentially “career-defining” and as one of the “scariest moments” a healthcare provider may encounter in practice.

According to the forum’s presenter, Dr. Laura Sigman, Director of legal and Policy Coordination at Children’s National Hospital in Washington, DC, the old approach was for doctors not to acknowledge what happened and not to talk to the patient or the patient’s family. That strategy was believed to provide the best protection for the negligent health care provider.

However, now a different strategy has taken shape: the “A, B, C, D” approach. Doctors should apologize, get backup from other health care providers, communicate with the impacted parties about what happened and how it will be prevented in the future, and finally disclose information and seek support from a safe party, such as the doctor’s spouse or therapist. Doctors also are encouraged to gather themselves before speaking to the patient or the patient’s family.

On the surface, this process appears to be a much-needed improvement. It seems as if doctors are owning their mistakes and taking responsibility for their actions. A closer look, however, reveals that this strategy is nothing of the kind. It is simply another way (and perhaps a more effective way) for health care providers and institutions to avoid accepting responsibility for their carelessness. Here’s why:

  • The emphasis here is on doctors, not patients. The concern is how to avoid an impact on the doctor’s career, rather than on the impact these mistakes have on patients and their families. Mistakes may indeed have consequences for physicians. Rarely are they career defining or disabling. But even if they are, that pales in comparison to what the patient experiences – a life-defining injury or even death.
  • The approach tries to avoid a “second victim” (the doctor or the doctor’s reputation), while doing nothing to help the “first victim,” the one who did nothing wrong.
  • The doctor is also at the center when it comes to getting backup and disclosing information. These actions both are meant to support the health care provider, so they can deal with any guilt they may feel as a result of needlessly injuring a patient, and to protect them from any potential legal action. Doctors are told to consult with their spouses and therapists because spouses and therapists cannot be compelled to testify against the doctor.
  • According to the report, Dr. Sigman prefers an apology that merely is “an expression of sympathy or regret,” rather than an admission of guilt or taking responsibility for what happened. We all know the type of “apology” Dr. Sigman apparently advocates. The classic version is, “I’m sorry if you were offended.” In the medical context, it goes something like this: “I’m sorry if you were disappointed by the care that was provided.” These types of apologies are regularly issued by doctors and by hospital representatives such as risk managers and ombudsmen. They are also issued by children and immature adults and generally by people who aren’t sorry and who want to avoid any consequences for their carelessness.
  • This “apology” is very different from a real, effective apology. The Association for Psychological Science identified the six components of an effective apology, based on the research of two professors at The Ohio State University. The first is an expression of regret, but the expression of regret is then followed by an explanation of what went wrong, an acknowledgment of responsibility, a declaration of repentance, an offer of repair, and a request for forgiveness. In the context of a significant patient injury due to a doctor’s preventable mistake, “repair” means undoing the harm caused or making up for it with compensation, if the harm cannot be undone.
  • It is always good advice to take time to gather your thoughts before you speak. Nothing wrong with that. But in this case, the primary reason doctors are encouraged to do so is to make sure that they don’t inadvertently say something that might be used to actually hold the doctor accountable for the mistake.

Providing health care is not an easy job. And no one is perfect. But if a doctor makes a preventable mistake, it is their moral obligation to take responsibility and do what they can to repair the damage they have done. The patient’s wellbeing should take precedence over the doctor’s fear of getting in trouble. That is basic human decency.

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