Monday, July 28, 2008

Physician Apology, Saying it Sooner than Later

(see also

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)

No comments: