Could a doctor saying "I’m sorry" for a bad medical outcome be enough to stop a patient from filing a malpractice lawsuit?
Some health care authorities think it might be, and they are pushing the Arizona Legislature to pass a law this session that would protect the apologies of health care providers from being admitted as evidence in court.
Today, physicians are terrified to talk with patients about unanticipated outcomes from medical care, fearing their words could be used against them in a lawsuit, said Dr. James Carland, chairman and chief executive officer of the Mutual Insurance Company of Arizona, which provides professional liability insurance to Arizona physicians. Hospital administrators also worry about litigation risks when something bad happens, he said, advising physicians not to speak to patients.
The result is a health-care environment in which litigation fears have stifled communication between medical providers and patients when communication is needed most, Carland said. The company he leads and the Arizona Medical Association are pushing for apology legislation.
"It’s a huge part of the healing process. It’s a huge right of the patient," he said. "We have to bring some humanity back into medicine."
Some patients and plaintiff’s attorneys said they would support a measure that improves communication in the doctor-patient relationship, which is sometimes so constrained that patients file lawsuits to find out what went wrong with their medical care.
When Lisa Muscarella delivered her son, Tanner, three years ago, she was told his limp, paralyzed arm would recover in 24 hours. When his arm didn’t get better, the Flagstaff resident said she tried to find out why from the midwife who delivered Tanner, but the midwife didn’t want to talk about it. By filing a lawsuit, she learned about mistakes made in delivery that can cause the kind of injuries that Tanner has. The case was settled with no discussion between Muscarella and her midwife about Tanner’s permanent disabilities.
"All of us have a deep desire in our heart to have providers look in our eyes and say ‘I’m sorry your baby was hurt,’ " Muscarella said. "We need that for healing, but we never get that."
As much as they would like to talk with patients when something goes wrong in medical care, physicians said they often have no choice but to keep quiet in case they become the target of a lawsuit. Litigation fears have created an adversarial relationship between doctors and patients, who should be on the same team, said Dr. Ronald Fischler, a Scottsdale pediatrician.
"You try not to let it get in your way, but how can you help but worry?" Fischler said. "As physicians, we have increasingly become the target of lawsuits."
If physicians felt their words would be protected from becoming courtroom evidence, they would speak more freely with patients, providing the consolation and understanding they desire, he said.
"By the nature of the fact people are sick, there are times when illness causes bad outcomes or doctors . . . make mistakes. In either case, it would be ideal if there could be full disclosure," he said. "You want your doctors to have good communication. You want your doctors to practice in a climate where they feel safe."
Carland said he has been working with Sen. Carolyn Allen, R-Scottsdale, on draft legislation that follows a similar apolog y law passed recently in Colorado. The legislation’s success there, as well as research showing the impact of apologies on litigation, prompted him to pursue the measure here, he said.
After the Department of Veteran’s Affairs Medical Center in Lexington, Ky., adopted a policy of assuming responsibility for medical mistakes by talking about them with patients and offering to settle claims, the center reported that malpractice costs dropped to an all-time low compared with 36 similar VA facilities. The center’s average settlement was about $15,000, while average VA hospital settlements were more than $98,000, according to federal records.
If an apology law is passed in Arizona, Carland said, in three to four years he expects to see a decrease in the number of medical malpractice lawsuits filed and an increase in physician and patient satisfaction.
But if introduced in its current form, the proposed legislation is likely to draw criticism from the Arizona Trial Lawyer’s Association, said Micheal Wright, a medical malpractice attorney in Mesa and member of the association’s board. The draft bill includes two provisions the association would object to, he said, which would change trial preparation procedures and the types of witnesses that could be called.
Muscarella said she worries that with such a law in place, physicians will apologize simply to avoid a lawsuit, not because they want to express sincere empathy for a mistake they made.
"If the motivation is to deter people from suing, that seems really manipulative to me," she said.
Carland said there is nothing in the proposed bill that would prevent a patient from filing a lawsuit after a physician apologizes or even admits liability. Although the statements could not be used as evidence in court, patients could still gather other evidence to build a case.
The hope is that they will be less inclined to do so when there is open communication with their health-care provider, he said.
Even with an apology, Muscarella said she would still sue to remedy her son’s lifelong pain and medical bills. But an apology from her medical provider would have made filing a lawsuit more difficult, she said.
"If you have a doctor who is genuine, a certain percentage of people will be much less inclined to sue, but it won’t affect the final decisions of a lot of people," she said.