The Power of the Apology: Resolving Medical Malpractice Claims in South Carolina

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“I’m sorry.” These two small words possess the potential to eliminate the creation of conflict altogether or, at a minimum, to facilitate a conflict’s resolution. Why, then, are apologies not offered more frequently and more quickly within the context of an unexpected medical outcome? The purpose of this article is to identify the different types of apologies currently used within the medical malpractice context, discuss the advantages of full disclosure and apology, explore the obstacles to full apology in South Carolina, and provide a brief overview of medical malpractice mediation in South Carolina.

What Must a Healthcare Provider Disclose?

As an initial matter, one must consider whether physicians are obligated to offer apologies, and, if so, what constitutes an apology.[ii]  Numerous professional medical organizations have articulated ethical standards compelling physicians to disclose medical errors to patients. [iii] The American College of Physicians’ Ethics Manual provides that “physicians should disclose to patients information about procedural or judgment errors made in the course of care if such information is material to the patient’s well-being. Errors do not necessarily constitute improper, negligent, or unethical behavior, but failure to disclose them may.”[iv] Further, the American Medical Association (AMA) instructs physicians that when “a patient suffers significant medical complications that may have resulted from the physician’s mistake or judgment… the physician is ethically required to inform the patient of all the facts necessary to ensure understanding of what has occurred.” [v] The AMA counsels that “[c]oncern regarding the legal liability which might result following truthful disclosure should not affect the physician’s honesty with a patient.” [vi] While it is clear what disclosures are ethically required of a treating physician, it is less clear whether an apology is a necessary component of the disclosure or what components are necessary to effect an apology.

Authors define apology differently.[vii] Aviva Orenstein contends apologies should: (1) acknowledge the legitimacy of the grievance and express respect for the violated rule or moral norm; (2) indicate with specificity the nature of the violation; (3) demonstrate understanding of the harm done; (4) admit fault and responsibility for the violation; (5) express genuine regret and remorse for the injury; (6) express concern for future good relations; (7) give appropriate assurance that the act will not happen again; and, if possible, (8) compensate the injured party. [viii]

Hiroshi Wagatsuma and Arthur Rosett state that an apologizer must acknowledge five things to constitute a meaningful apology: (1) the harmful act happened, caused injury and was wrongful; (2) the apologizer was at fault and regrets participating in the act; (3) the apologizer will compensate the injured party; (4) the act will not happen again; and (5) the apologizer intends to work for future good relations. [ix]

Steven J. Scher and John M. Darley identify four components of an apology: (1) the admission of responsibility; (2) an expression of remorse; (3) a promise of forbearance; and (4) an offer of repair.[x] Jonathan R. Cohen identifies three elements: (1) admitting one’s fault; (2) expressing regret for the injurious action, and (3) expressing sympathy for the other’s injury.” [xi]

Michael Runnels defines a full apology as “an expression of regret that acknowledges fault and is coupled with compensation for the harmed party.” [xii] A partial apology is “an expression of remorse or regret without any admission of fault.”[xiii] In her comprehensive empirical analysis of the role of apology in settling disputes, Professor Robbennolt defines a “partial apology” or sympathy expression as one in which the offending party expresses sympathy and hope for a rapid recovery, but does not accept responsibility for the accident causing the injury.[xiv]

Healthcare providers have received varied advice about what they should disclose, whether they should apologize and, if so, what constitutes an effective apology. [xv] A survey of hospital risk managers revealed variation of disclosure practices among hospitals.[xvi] Most risk managers reported that they include an explanation (92%) and would initiate an investigation into the occurrence (87%) when making a disclosure; however, only 68% reported that they include an apology.[xvii] Fewer reported that they offer compensation (36%) and even fewer accept responsibility for the harm (33%).

The Advantages of Full Disclosure

Anecdotal evidence of the positive effects of full disclosure and apologies within the medical context has more recently been confirmed by empirical data and systemic adoption of full disclosure policies by healthcare institutions. The evidence “clearly supports that patients and families who are harmed by unanticipated outcomes have the same basic trio of needs: honesty and information in real time, close to the event rather than after a lengthy investigation; an acknowledgement of their pain and suffering and an apology if warranted; and an assurance that what happened to them won’t happen to someone else-the patient safety connection.”[xviii]

In one experiment, 149 patients were presented with hypothetical descriptions of medical errors that resulting in injuries of varying severity. [xix] 98% of the patients “desired or expected the physician’s active acknowledgment of an error.”[xx] Patients indicated they were more likely to change physicians, report the physician or file a lawsuit if the physician did not disclose the error than if they were advised of the error.[xxi]

Another experiment surveyed health care plan members’ responses to vignettes involving medication errors and varying physician responses. [xxii] In non-disclosure vignettes, the physician provided limited information about the error and did not acknowledge responsibility.[xxiii] In the full disclosure vignettes, the physician provided additional information, accepted responsibility for the error, apologized and detailed steps that would be taken to avoid recurrence. [xxiv] Patients who read the full disclosure vignettes were less likely to indicate they would seek legal advice regarding the incident or change physicians and reported more satisfaction, more trust in the physician and fewer negative emotions that those in the non-disclosure vignettes.[xxv] 88% of the participants agreed they would want their physician to apologize and 99% agreed they would want to know something was being done to prevent this from happening to others. [xxvi]

Another study presented videotapes to patients depicting a dispute between a patient and a physician regarding the patient’s wait time. [xxvii] Each version of the dispute displayed a different reaction by the physician, including several types of apology or explanation.[xxviii] Patients reported the greatest satisfaction with physician responses that involved an apology with an implied acceptance of responsibility and an apology that included an explanation for the wait.[xxix] Patients identified an apology as the most important statement that a physician can give, followed by an explanation.[xxx]

In another study with 145 respondents involving the non-medical scenario of a pedestrian-bicycle accident, the willingness of the respondent to settle hinged largely on the offer of a meaningful apology.

“When no apology was offered, 52% of respondents indicated that they would definitely or probably accept the offer, while 43% would definitely or probably reject the offer and 5% were unsure. When a partial apology was offered, only 35% of respondents were inclined to accept the offer, 25% were inclined to reject it, and 40% indicated that they were unsure. In contrast, when a full apology was offered, 73% of respondents were inclined to accept the offer, with only 13-14% each inclined to reject it or remaining unsure.” [xxxi]

According to this data, those who offer a full apology stand the best chance of reaching settlement or avoiding litigation altogether.[xxxii]

These studies confirm that health care providers who provide a meaningful apology to their patients enhance the relationship with the patient and instill greater confidence in the healthcare system as a whole. Additionally, systems which foster a culture of apology benefit as well.

In 1987, after losing two major medical malpractice cases, the Veteran Affairs Medical Center in Lexington, Kentucky (Lexington VA) instituted an extreme honesty policy of disclosing adverse events to patients, even when patients were unaware an adverse event occurred.[xxxiii] Representatives of Lexington VA promptly made disclosures to the patient, patient’s family, or representative verbally in a face to face meeting; admitted fault; and offered settlement where appropriate.[xxxiv] A written acknowledgement of fault was also offered, if desired by the patient, patient’s family, or representative.[xxxv] In addition to providing documentation of dealing with adverse events in case of future malpractice litigation, this process also afforded significant unanticipated financial benefits for Lexington VA.[xxxvi] Although the number of reported errors increased, the number of litigated claims dropped dramatically.[xxxvii]

In 2003, Kaiser Permanente, the nation’s largest not for profit Health Maintenance Organization, adopted a program based on the MedicOm model first implemented at the National Naval Medical Center in Bethesda, Maryland in 2001, to offer “more equitable and integrative solutions to injured patients and their families after an unanticipated outcome has occurred.” [xxxviii] In furtherance of Kaiser Permanente’s initiative, more than 11,000 physicians and other health professionals were trained in communication skills that encouraged honesty, empathy and sympathy, including how to acknowledge the effects that the adverse outcome might have on patients and families as well as to apologize personally when appropriate.[xxxix] The Ombuds/Mediators serve as go-betweens to ensure the needs of patients and families are taken care of appropriately, including providing answers to the difficult questions of what happened and why.[xl] As a result of the Ombuds/Mediator program, Kaiser Permanente is saving significant legal fees, although that was not the motivator for the program’s inception.[xli] Instead, Kaiser Permanente was motivated to ensure their members’ quality-of-care concerns are addressed in a timely, empathetic and honest manner while also providing a neutral, confidential resource to Kaiser Permanente’s providers for the fair resolution of conflicts.

Other healthcare systems have advanced a culture of apology with beneficial results for both patient care and the providers. For example, the University of Michigan Health System (UMHS) began an active disclosure-with-offer program in the late 1990’s.[xlii] By 2001, UMHS began responding to all medical malpractice claims “by admitting fault and offering compensation when an internal investigation reveals medical error.”[xliii] Conversely, if the internal investigation reveals no medical error, the claim is vigorously defended, but an explanation is provided for its conclusion.[xliv] In 2002, UMHS began linking the investigation process with peer review and quality improvement efforts and later integrated the program with patient safety efforts.[xlv] After full operation for a few years, the program resulted in a dramatic decrease in the monthly rate of new claims, monthly rate of lawsuits, and time between claim reporting and resolution.[xlvi] Average monthly costs for total liability, patient compensation and non-compensation related legal fees also decreased.[xlvii] Additionally, the cost per lawsuit shrank from $405,921 to $228,308.[xlviii] Notably, these savings have been redirected into quality improvement projects. [xlix]

The empirical data indisputably establishes the benefits of a full disclosure system, but this concept continues to meet resistance within the healthcare industry.

Obstacles to Full Disclosure and Apology in South Carolina

The treatment of fault in the various definitions of apology suggests one of the greatest obstacles to the offer of a full apology: fear of civil liability. “Health care providers cite fear of litigation as a major barrier to disclosing and apologizing for medical error.”[l] The fear of impending litigation is then coupled with the fear that any apology offered may be used against the health care provider. “[I]t seems clear that part of the fear of litigation stems from concern about how jurors will react to a case in which a provider has disclosed error and apologized.” [li]

In 1986, Massachusetts became the first state to adopt an evidence rule designed to proscribe apologetic expressions of sympathy and benevolence from admissibility when used to prove liability in civil cases.[lii] In 2006, South Carolina enacted the South Carolina Unanticipated Medical Outcome Reconciliation Act, S.C. Code Ann. Section 19-1-190, (the Act). Specifically, the Act states that:

[C]onduct, statements, or activity constituting voluntary offers of assistance or expressions of benevolence, regret, mistake, error, sympathy, or apology between or among parties or potential parties to a civil action should be encouraged and should not be considered an admission of liability. The General Assembly further finds that such conduct, statements, or activity should be particularly encouraged between health care providers, health care institutions, and patients experiencing an unanticipated outcome resulting from their medical care. Regulatory and accreditation agencies are in some instances requiring health care providers and health care institutions to discuss the outcomes of their medical care and treatment with their patients, including unanticipated outcomes, and studies have shown such discussions foster improved communications and respect between provider and patient, promote quicker recovery by the patient, and reduce the incidence of claims and lawsuits arising out of such unanticipated outcomes. The General Assembly, therefore, concludes certain steps should be taken to promote such conduct, statements, or activity by limiting their admissibility in civil actions. S.C. Code Ann. Section 19-1-190(B).

In any claim or civil action brought by or on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, gestures, activities, or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence which are made by a health care provider, an employee or agent of a health care provider, or by a health care institution to the patient, a relative of the patient, or a representative of the patient and which are made during a designated meeting to discuss the unanticipated outcome shall be inadmissible as evidence and shall not constitute an admission of liability or an admission against interest. S.C. Code Ann. Section 19-1-190(D).

The defendant in a medical malpractice action may waive the inadmissibility of the statements defined in subsection (D) of this section. S.C. Code Ann. Section 19-1-190(E).

Nothing in this section affects the South Carolina Rules of Evidence. S.C. Code Ann. Section 19-1-190(F).

Although this statute provides a shield for conduct, statement, or activity that occurs within a designated meeting[liii] as defined within the Act, it fails to fully insulate health care providers from any admissibility in a civil action. First, the Act fails to go as far as legislation enacted in other states, such as Colorado, which expressly protects an admission of liability from admissibility in a civil action. Second, the Act preserves the South Carolina Rules of Evidence, which may be interpreted to allow a non-hearsay statement to come into evidence if the statement was made outside the setting of a designated meeting.[liv] Rule 801(d)(2), SCRE, specifically excludes statements made by a party or a party’s authorized representative from the definition of hearsay in keeping with Rule 801(d)(2) of the Federal Rules of Evidence, rendering such statements likely admissible.^[lv] Finally, the Act anticipates that a health care provider may waive the protection against admissibility provided by the Act. If multiple health care providers are involved in the same case and one can waive the inadmissibility of “conduct, statement or activity” that may support the plaintiff’s cause of action, the protection of any non-waiving provider’s conduct, statement or activity may be unilaterally destroyed.

An additional obstacle to full disclosure and apology is the fear of stigma amongst colleagues. Health care providers are anxious that disclosing errors and offering apologies will compromise the respect and trust extended to them by peers and patients.[lvi]

Perhaps the largest barrier facing a physician is the fear of registration with the National Practitioner Data Bank (NPDB), which maintains a permanent record of adverse professional events for physicians, including payment made to resolve medical malpractice claims in any amount.[lvii] There is no minimal dollar threshold for medical malpractice reports.[lviii] Although there are ways to avoid mandatory reporting, as argued by Dr. Morreim, physicians still fear the possible adverse consequences of reports to the NPDB, even if such reports were made in error.[lix]

As noted by the Montana Supreme Court in the case of Doe v. Community Medical Center, Inc., 221 P.3d 651(Mont. 2009), “[A] ringing bell cannot be unrung. An erroneous report announcing to all interested parties that a physician is being investigated or suspended for unethical activity or impairment has the potential for immediate harm as well as permanent harm, even if later recanted.”[lx]

Accordingly, health care professionals’ path to a culture of apology remains riddled with obstacles, despite the potential benefits of early resolution arising from full disclosure and apology.

Mediation of Medical Malpractice Claims in South Carolina

2005 heralded significant tort reform in South Carolina. South Carolina now requires medical malpractice claims be mediated prior to filing a civil action. S.C. Code Ann. §15-79-125(C) mandates that the parties participate in a mediation within 90 days and no later than 120 days from the service of the Notice of Intent to File Suit, “unless an extension for no more than 60 days is granted by the court based upon a finding of good cause.” Additionally, once a lawsuit is commenced, S.C. Code Ann. § 15-79-120 requires that all medical malpractice actions be mediated before the matter is brought to trial. Accordingly, the parties to a medical malpractice action not resolved in an early resolution system like those outlined herein above must participate in two formal mediation conferences prior to trial.

All mediation conferences are governed by the South Carolina Court-Annexed Alternative Dispute Resolution (ADR) Rules. Rule (8)(a)(2) of the ADR Rules provides “[a]dmissions made in the course of the mediation proceeding by another party or any other person present” are confidential. Thus, the mediation conference provides confidentiality for any admissions or statements of apology when the Act and the South Carolina Rules of Evidence cannot guarantee the same protection for the same statement if offered outside the protection of a “designated meeting” or otherwise outside the mediation conference. The guarantee of confidentiality within the mediation proceeding does not resolve the physician’s concern about reporting malpractice settlements to the NPDB, but does offer a layer of protection otherwise unavailable that may motivate a practitioner to more readily admit a medical error and apologize.

CONCLUSION

A growing body of empirical data confirms that full disclosure and apology in the event of an adverse medical event is integral to the early resolution, and possible avoidance altogether, of medical malpractice claims. These studies demonstrate that even a partial apology significantly reduces the likelihood a patient or patient’s family will pursue a medical malpractice claim. More importantly, the data compiled from systems where full disclosure and apology policies have been adopted reflects an improvement in the quality of patient care, a marked decrease in the number of medical malpractice lawsuits filed and a decrease in overall costs to the providers. However, healthcare providers must overcome significant obstacles to embrace a culture of disclosure and apology, including, but not limited to, fear of litigation, potential stigmatization, possible admissibility of apologies or admissions in a civil action and registration with the National Practitioner Data Bank. South Carolina has moved to offer some protection to disclosures made by health care providers when an unanticipated adverse event occurs, but these protections do not guarantee confidentiality except in the context of either a designated meeting as defined by the South Carolina Unanticipated Medical Outcome Reconciliation Act or a mediation conference.

- Darra James Coleman [i]