John O’Grady, MD: A number of us were recently discussing complications of pregnancy and surgery. The issue of “apology and disclosure” for bad results was raised. This led to a spirited discussion and a good deal of disagreement. I and several others thought that the idea of offering an apology for a bad result along with a disclosure of what went wrong –when this can be discerned --, combined with a financial reimbursement of a patient’s unanticipated hospital costs was a good idea. Further, in some instances additional payments might be reasonable in consideration of the severity of injury. However, other of our colleagues were strongly in disagreement, believing that doing this was a serious mistake. They strongly argued that a system of “Apology and Disclosure” would result higher risk of creating lawsuits and payments in situations where legal action was not even going to be contemplated, let alone pursued. Thus, you would simply be creating issues and increasing costs to the system. Furthermore, you would be asking physicians to take on roles that they haven’t been trained to perform and may not be adept at ameliorating patient dissatisfaction.
These physicians thought this idea to be simply unworkable. Those with private insurance argued that they had no ability to commit an insurance company to any payment scheme. They also opined that the mere act of apology might place in jeopardy their insurance coverage. That is, the apology would be an admission of “guilt” that would later be used against them by the patient and so the malpractice insurer would claim that they violated the contract by not cooperating with the defense. So, if the process/offer was not previously approved by the insurance carrier it could possibly result in a denial of coverage.
So, who is correct? As an aside, I note that a number of institutions have established such systems for expressing regret and /or apology. Those organizing these schemes obviously believe that this can have a beneficial effect, short circuiting potential suits, improving relationships with unhappy patients and improving care by identifying problems with health care delivery sooner. So certainly somebody thinks it’s a good idea.
Kevin Giordano, Esq.: Apology and Disclosure programs do have their place in resolving conflicts that develop within the patient / health care provider relationship. But, you have to have clear goals in mind. I believe that there is a misconception about the promises of such programs. If they work as suggested, such programs should identify potential cases of liability early on followed by reaching out to the patient and/or their family. In so doing, patients are compensated sooner, are less hostile and vested in an adversarial relationship, so cases are resolved sooner and for less money in indemnity dollars and litigation costs. So arguably one would see a savings of the institutional resources. Although there is some evidence to suggest that such a program, if implemented carefully and thoughtfully, will not increase costs to a self-insured health care institution, I am not convinced yet that there is sufficient evidence-based data to support that such a program will save money.
Thus, for me, Apology and Disclosure programs should strive to change the culture within any institution that does not effectively acknowledge errors to one in which transparency is created in an effort to improve health systems and delivery of care. Then, arising out of that culture, a concomitant effort to redress a patient and perhaps the needs of their family as soon as practicable if an injury was caused by a failure to meet applicable standards.
O’Grady: I don’t understand, as I have always seen discussion of Apology and Disclosure in the context of saving overall costs. If health care providers identify cases right away where there has been malpractice, and then disclose that to the family with an apology, what is the downside? More importantly doesn’t that kind of bedside manner often dissuade patients from bring lawsuits and thereby avoiding litigation altogether? Even if we have to come armed with cash, aren’t both indemnity payments and attorney’s fees going to be much less if all this is done before the parties are lawyered-up? Not for nothing, but you do have a horse in this race, no?