Physician Apology, Saying it Sooner than Later

(see also myhealth-matters.blogspot.com/)

Recently a New York Times article ‘Doctors say "I'm Sorry" before "See you in Court"’ and a follow-up editorial ‘Doctors Who Say They're Sorry’ addressed the uncomfortable issue of medical errors, especially those associated with having caused harm to patients.

For most practising medical practitioners out there, medical errors are considered a near-taboo subject: one, which is best left behind the radar screens of scrutiny.

Yet we are aware that medical errors, especially those which are inadvertent or which result from unexpected patient/individual reactions or peculiarities, do happen, albeit not too frequently.

Being honest and direct with the patients involved can, safely diffuse many of these potential patient-relative complaints. Careful and candid explanation as to why these had happened and why they should not have, and that they would not be allowed to recur, will also help lower the temperature of annoyance and anger.

Most importantly, these types of errors should be treated as high priority and with empathetic sensitivity. Affected patients must be given every avenue to resolve or lessen the harm with the least incurring of pain, suffering or costs.

Of course, medical centres and hospitals must work together with doctors to address these so that cost sharing or waiver/compensation can be implemented expediently and efficiently. The patient should leave the facility satisfied that all that could have been done had been done.

More egregious are those errors due to diagnostic inaccuracy or therapeutic misadventure, incompetency or careless negligence. These are often deviously obfuscated, with blame deflected, or simply denied a full hearing or explanation to the harmed patients.

It is this group which when finally exposed, that oftentimes cause much anger and demand for compensation, or even calls to reprimand or to punish the erring doctor or facility. Hence, the resultant litigation process which every doctor dreads.

But, admitting to medical mistakes is easier said than done. Besides, in most medical cultures, it is not permissible or safe to do so. Yet, we know that more can and should be done.

Although some 10 years ago, when Lucian Leape's group from the Institute of Medicine reported that as many as 98,000 patients died as a result of medical errors in the United States ("To Err is Human")—many are adamant that this was exaggerated. Many still denied the actual enormity of the problem.

Then some time in the early 2000s, when the Consumer Association of Penang (CAP) president, SM Idris alluded to a similar state of unrecognised medical errors in Malaysia, as the then editor of the Berita MMA, I objected quite vehemently that to extrapolate based on the experience in the US was wrong and unacceptable.

Then, I had called instead for more in-depth study and urge our health community to research this by gathering more accurate data, so that we can get a clearer picture as to the scale and the scope of this serious problem. I also called for pre-emptive attention to detail and a systemic overhaul of procedures and processes to help reduce these possible errors from taking place.

Perhaps CAP's statement to the press was too artless and seemed to denigrate the overall goodness of the medical care experience that I had felt duty-bound to defend.

As an MMC councillor, however, I have had the privilege of listening to increasing number of complaints brought to the attention of the Malaysian Medical Council (MMC).

Most of these complaints are about unexpected adverse outcomes resulting from some medical therapeutic choices or decisions, which have gone awry, and/or unhappiness with the patient-doctor communication, or implied physician dishonesty.

Many of these MMC complaints are however, not ethical in nature and does not impute serious professional misconduct.

This is not to say that there have not been medical errors or misadventures having taken place, but that the MMC is not the board or forum for resolving disputes related to negligence or incompetence, unless there is a recurrent pattern of egregious conduct, which can endanger other patients. Unfortunately many among the public has mistaken the latter as the role of the MMC.

Quite often, disgruntled patients or their relatives complain of inadequate information provided to them, some even claim that none were offered at all. At other instances, when untoward bad outcomes result, not enough information or explanations were given. Too many delaying tactics or perceived deflection or excuses to very legitimate queries, often create unresolved feelings that the doctor and the hospital are hiding something.

It is this need to have closure and/or meaning that many aggrieved parties seek out the MMC or worse the courts to prove medical negligence, and ultimately seek retribution and recompense.

Of course, there are many lawyers out there who are quite ready for such pro bono work to litigate against such incompetent doctors or hospitals, and so the problem escalates.

Thus, many medical centres and doctor groups have begun experimenting with the new deal of becoming more forthcoming, and saying sorry first and early too.

Some 30 states in the US have enacted laws to protect the admissibility of such apology-related disclosure from medical malpractice challenges. And it appears that it is working. In some medical centres, early resolution with smaller compensation claims have already resulted, with some medicolegal costs falling by as much as two-thirds!

Thus perhaps for Malaysians too, this might be a way forward. Saying 'Sorry' and admitting candidly a medical error should not be taken as license to litigate, but as trying to resolve a bad situation from becoming worse.

Still, offering an apology to patients and their relatives is not a definite or necessarily positive reaction: some aggrieved parties would still doubt the sincerity or genuineness of the apology, and cynically view these as attempts to underplay the severity of the mishap, and a business tactic to secure patients/relatives into accepting a bad outcome.

A discussion with a renowned dispute resolution advocate, Dr R. Veerapan, suggests that genuine apologising “can be difficult for doctors who have been trained in a system where admitting error has the odour of moral failure.”

“'Apology' by healthcare professionals has wide ranging implications and it is very important for potential 'apologizers' to have a very clear understanding about what these may be.

“Individual institutional policies and procedures should be defined. Doctors should know for sure what the policy of their medical indemnifier is regarding apology.

“And of course there is the fine but critical difference between expressing regret and empathy for a poor outcome, and actually apologizing for making a medical mistake of some form. Not easy, apologising! Yet so important under carefully understood conditions!” adds Dr Veerapan.

I agree that apologies are such difficult and scary animals for most of us doctors because it implies a ‘moral failure’ on our part. More than that, it also exposes our lesser than perfect image that we have acculturated into our profession.

Perhaps we have to work towards a better modus operandi to make medical apologies more systematic and acceptable—while ensuring that legal barriers are reduced if not eliminated.

Dr Veerapan suggests that “one of the obstacles besides the medical invincibility factor is inherent in the DNA of Malaysian private practice. And that is the way we are pitched in indirect financial competition with other medical practitioners. This is the undefined factor that in all likelihood contributes to the reluctance to be forthright in a variety of professional relationships in the medical or surgical field; and not just with patients and their families.”

Such personal and professional dynamics aside, it is perhaps time to move forwards. Saying sorry appears to be a way forward to help lessen the adversarial approach that seems to stifle the medical error-negligence debate.

There must be mechanisms (perhaps legislative?) to protect such apology and disclosure, and perhaps we should also enact laws to ensure that admissibility of such information is protected from medical malpractice claims.

Another approach is through a wider judicial-led Mediation process, which has already been put in place in Singapore. At one MMC meeting in mid-May, Dr Thurairatnam, (a past-president of the Malaysian Dental Association and Dental Council member) presented a short lecture on how this may be a useful alternative dispute resolution process—the MOH is considering some way to explore this option further.

"Sorry seems to be the hardest word," so sang Elton John, but perhaps we as doctors can learn to say so earlier, sooner than later, and be ready to help our patients resolve better as a result, when medical care goes wrong.

Apology is a vital component in the healing process of early intervention when conflict escalates after an adverse medical event. We must all learn to cope better with and mitigate against these increasingly challenging aspects of modern medical practice. Humbling ourselves by being genuinely sorry and saying so, rather than defensively obscuring and/or excusing unpleasant and unexpected adverse outcomes is the way forward.

(This is an expanded version of my earlier blog which is to be published in the Newsletter of the Malaysian Medical Council, July-August 2008)

Should We Tame the Political Genie in Us?

"Mankind's moral sense is not a strong beacon light, radiating outward to illuminate in sharp outline all that it touches. It is, rather, a small candle flame, casting vague and multiple shadows, flickering and sputtering in the strong winds of power and passion, greed and ideology. But brought close to the heart and cupped in one's hands, it dispels the darkness and warms the soul."
~ James Q Wilson, in The Moral Sense, 1997, p251. Free Press Paperbacks, NY.

Once again, the issue of political incorrectness in our MMA News has been raised. I have again been urged to steer clear of discursive political meanderings, which appear seemingly out of place with the aspirations of the Association and the medical profession.

If members had been following the rigorous debates since September 1997, in the various MMA News, you would no doubt have got an inkling as to my trenchant views and position as editor of this newsmagazine.

You would have noticed that over the years, I have always encouraged everyone to be more mature, more vocal and to speak out, on issues, which affects us as human beings or as a medical profession.

We can all do with more open dialogue and debate, transparency and accountability. Constructive criticism and opposing viewpoints are always encouraged and welcomed.

What then about our MMA editorials, which, some members appear to be rather rankled by the occasional, perceived political slant?

This aspect has been debated at length, in the past pages of the MMA News, and most recently at the Annual General Meeting (AGM) in Penang, where several resolutions were argued (yes, vociferously and engagingly) and finally passed and adopted by the delegates with overwhelming if not near-unanimous support (see MMA News, October 1999, p6-7, Resolutions 10-13).

At the Penang AGM, a resolution (Resolution 10) pertaining to the vote of confidence in the Editor (thereby embracing his style of editorship) and the Editorial Board, was discussed and adopted by a large majority of the delegates.

Further, in order to guide the Editor and the Board better, Datuk Dr McCoy and I, initiated a resolution (Resolution 11) on the Terms of Reference for Publications, which was again adopted. In this resolution (ibid. p7), point 6 refers: “To inform readers about the non-clinical aspects of medicine and public health, including the political, philosophical, ethical, legal, environmental, economic, historical and cultural aspects.”

Resolution 12 on Human Rights was also endorsed at the Assembly, among which are pertinent clauses which state, and I quote: “Recognising that the medical profession has unique responsibility for the health and welfare of society and therefore has a duty to articulate concern about issues that affect the health and welfare of the community, the MMA affirms its commitment to,” amongst others, the Universal Declaration of Human Rights, and the World Medical Association Declarations of 1975 and 1990 (ibid. p7). This adopted resolution also calls “upon the government of Malaysia to repeal the Internal Security Act and to legitimise the right of peaceful assembly and association.”

Therefore, the delegates and representatives of the MMA membership have in fact aprobated and endorsed our editorial stance and direction, which they saw as being fittingly appropriate and apropos with the current state of affairs. We are thus empowered to highlight, disseminate and act on the resolutions of the General Assembly.

The adopted resolution on the Terms of Reference for Publications will undoubtedly help steer us along the prescribed ethical path. Although, editorial independence has been espoused, we will endeavour to use this democratic mandate with respectful and solemn responsibility. Of course, this is not a carte blanche for us to pursue just about any whimsical or personal agenda.

In this context of freedom of expression and thoughts, any editorial or opinion piece should therefore, not be treated as sacrosanct or “holy script”. An editorial is just what it purports to be––an opinion piece which is deemed topical and important enough (in the eyes of the Editor or Board) to be highlighted for mental jousting and thought. It is never intended for the purpose of unimpeachable doctrine or infallibility––certainly not those that I have penned.

Therefore, any disingenuous query on whether a particular editorial was a personal opinion or that of the Board, sounds like the tired recurring scratches of a propagandist record to try and isolate and divide persons perceived as threats to authoritarian dictates. Nevertheless, my authorship has always been clearly stated, and whatever perceived bias is mine alone, as it should be. I have never imputed anyone else.

In general, editorials or opinion pieces are not subject to heavy vetting or censorship by the editorial board. The latter is particularly odious to me, and I have said so many times before. I am a declared and fiercely unapologetic proponent of freedom of speech and opinion, perhaps too artless for some.

Nevertheless, as I have earlier pledged at the general assembly in Penang, I would continue as editor only if I can help push the MMA News to greater heights of newsworthy excellence, editorial independence and higher ethical standards –– which includes unfettered yet responsible freedom of opinion.

But, anyone can disagree with me. Even some members of the Board have on occasion, distanced themselves from articles written by me, or others for that matter. My own editorial position on this has also been reiterated previously (MMA News, June 1999 pp 5, 15).

The recurrent suggestion that I might have been influenced by a “particular pressure group within the organization of the MMA” is of course, pure nonsense. In fact, I wish to categorically state here, that the MMA Council members are not at all involved in the editorial direction of the Berita MMA, except perhaps in the spirit of the Association's Constitution where the Berita MMA tries to conform, within the mandate of the prevailing Council.

Bill Cosby, television actor and writer, has cogently said that “I don't know the key to success, but the key to failure is trying to please everybody.” Doing what we believe in, does not imply the need to please or find universal conformity with everyone.

Neither should this always be by consensus seeking, as this also might be too restrictive and can stifle freedom of speech and opinion. Humans are just too diverse and socio-culturally different. Thus, I believe being able to discuss openly our differences is a mature and correct approach to help narrow the perceptual chasms which keep us apart.

Am I making use of the editorial column unfairly, to misrepresent the MMA? I certainly hope not, but then again, this is subject to differing perceptions and ideology.

My intention (as of everyone who chooses to write, aspires) is to be heard, and to jostle and prod the mind, the conscience, or the moral fibre of the reader, so that current issues could be debated with more openness or at least, be thought about more deeply. Being the supposedly more literate and educated professional, it is expected that we can take the lead in open intellectual discourse concerning the higher aspirations of our people and our nation.

It may even be that in due course, some could conceivably come to share with my views of social justice and the moral high ground that seemingly has become eroded in our society, of late. Clearly, I do not profess to have the know-all, and what I write may be all sanctimonious naiveté, to some.

However, I am glad that more and more doctors and members are now taking a more involved role in our society and association, by voicing their concerns one way or the other, rather than to remain the grudging and oftentimes silent majority––which had in the past been attracting partisan and inchoate impugnation.

I am saddened by the still pervasive attitude that implies that no one or any association can or should dare question the Establishment, etc. unless explicitly stated within the Constitution or for that matter only when permission was given!

This is most certainly an obsolete and antiquated denial of any citizen’s rights to question or to debate (without male fide) wrongs, injustice or whatever shortcomings that any authority or establishment commits or omits.

US president extraordinaire Abraham Lincoln has stated that “the possibility that we may fail in the struggle ought not to deter us from the support of a cause we believe to be just.” He should know better, because he went all out to defend the just but unpopular liberation of slavery, with the defining American Civil War. In the end justice prevailed and African American slavery was at last legally abolished.

The education and promulgation of such a premise as human rights must therefore begin in everyone’s mindset, which should be more open and receptive, and not clamped shut by parochial gridlock.

Fear and sociopolitical narrow-mindedness must not stifle the inherent nature of man to be free to think. As I have stated before, it is certainly ridiculous to limit talk or opinions on all things political, to the hallowed grounds of political platforms, only. Every man is indeed a sociopolitical animal, and politics pervades and affects every fibre of our human psyche and well-being.

Political affiliations mandate a certain degree of constraints, of policy rigidity––hence, I don't belong to any. I feel that I am not cut out for the malleable rules of political one-upmanship and other unsaid expediencies.

Yet, my choice does not mean I cannot be a concerned citizen. Neither does it imply that I am hiding behind the shield of the MMA to pontificate on things political just for the sake of doing so, or for a politically motivated agenda. I have none.

My overarching concern has been the continual assault, erosion and dismantling of our precious institutions, and the tale-spinning, fear-instilling destruction of our hitherto harmonious society and socio-cultural values. We appear to be inexorably sucked into the ensnaring Charybdis of wealth and the Scylla of power, with diminishing regard for human core values.

(For an excellent but otherwise exhaustive discourse on this, please refer to Datuk Dr Rais Yatim's book “Freedom Under Executive Power in Malaysia––A Study of Executive Supremacy” 1995. Alas, even he has now sung a different tune and has largely disavowed his past dissertation which he has called academic and passé!) Disaffection with the erosion of these human universal values rightly deserves the attention and scrutiny of every person.

There is hopefully still some universal standard of recognising what is right or wrong. Matters cannot be so easily painted grey or coloured in any way just to placate the whims and demands of any one person or persons. When some issues are clearly extraordinary and patently wrong, these should be exposed as such and hopefully they can be corrected or improved upon.

One such circumstance, which we opposed stridently, was the attempt to hurriedly corporatise our Health Services without the necessary safeguards and financial infrastructure. Happily, this has now been aborted, pending an in-depth reappraisal of the specifics.

Perhaps, the ugly truth of the matter may sound jarringly disquieting and unpalatable, especially when it seems to undermine the cozy status quo that we have become so inured with.

Disturbingly, we are becoming more and more myopic, preferring immediate and short-term gains, but appearing not to be interested in the larger picture or the longer-term consequences.

Wasn’t it Confucius who exhorted millennia ago, that “to see what is right, and not to do it, is want of courage, or of principle”? Is it not time to act?

We all have a right to our own political belief and/or attachment to certain personalities. But I dare say we all have to learn to be able to see beyond the horizon of simplistic yet parochial niceties and our all-consuming self-interest. We must be able to initiate or push for change for the better, whenever there is some other greater and more paramount “truth” out there.

Why should any man be satisfied with the oppressive weight of “more of the same”, no matter how fantastically well our society has been perceived as stably humming along? Is the fear of the unknown so terrifying that we dare not venture out of our shell?

Is the known status quo so cast in concrete that no change or improvement can be allowed to take place? Are we so content that we allow ourselves to be set in the fossilized past forever?

Or is it not our nature and responsibility to want to improve upon ourselves and our institutions?

We should all learn to look more closely at our society and dare say that while material wealth and well-being have permeated our society, other less tangible, less obvious executive transgressions have gotten out of hand.

The genie is out of the lamp, and it is wreaking unthinkable turmoil in our society’s sanity and sociopolitical well-being. Or are we still in closeted denial that everything thus far has been hunky-dory?

Perceptions of truth have been slanted this way and that, so much so, that we no longer are sure of our moral bearings.

Is it really that much easier for us to set our blinkers on and behave like the proverbial ostriches who simply bury our heads in the sand, when misdeeds or unpleasant happenings abound all around us?

Are some of us––the so-called intellectual elite––so caught up in our own ivory towers, that we fail to appreciate the nationalistic aspirations and bountiful largesse of our masterful leaders?

Have some of us been unfairly prejudiced by the entire world’s foreign press, so that we have failed to see the greatness of our own jingoistic society?

Or, have our chanting shibboleth of Malaysia Boleh so blindsided us, that we have become impervious to any contrarian criticism, except for sycophantic praises?

Are we so hemmed in by our overpowering feel-good mindset that we no longer care, so long as our bread-and-butter issues are left well alone?

Have we elected to become stunted at the lower rungs of our hierarchy of needs? Abram Maslow would have been disappointed!

Are our Asian values so different, that we can accept less tolerance for individual freedom and human rights aspirations?

Or, have we simply abdicated or vacated our conscience for political expediency?
I choose to believe that ultimately some semblance of sanity and poetic justice will prevail, and that the growing destructive forces of Machiavellian sectarianism, unbridled power-plays and petty interests will be contained and returned into the genie’s bottle, for keeps.

That said, whatever happens, whichever victory would have been a Pyrrhic and hollow one. Our Greek-like tragedian dramas have yet to fully reach their final denouement. Somehow, as helpless as we are, we still owe this to ourselves to want and to help make some good happen, and shape the outcome of our collective choice––one way or the other...

Should the MMA or the Berita MMA, be embroiled in this quagmire of contention? Perhaps, because I believe as responsible professionals with reasonable respectable voices and conscience, perhaps we can serve a wider and higher good.

Moreover, I do believe that our professional lives and society are much too intricately intertwined to be so sharply compartmentalized in deciding what anyone can say or do or think.

Shouldn’t any concerned citizen speak out, so that the deafening silence can be broken, for the betterment of the society at large, sans political repercussions, sans public censure, because of self-interest, fear, intimidation and/or a cowering insular mindset?

Or, should we simply stifle the political genie within us from escaping, forevermore?

"Lead me from the unreal to the real!
Lead me from darkness to light!
Lead me from death to immortality!"
~ Brihadharanyaka, Upanishad 1.3.28

[Previously written as an MMA News Editorial 25 Nov 1999]