This Sunday, we bring to you an old article from our archives.

Doctors are after all human, and like any sensitive human being, on several occasions, doctors wish to apologise to their patients or their relative (in case of death of the patient) for a medical error. Patients too can become satisfied after an error with a simple apology by the doctor and may refrain from litigation. However, the fear of misuse of such an apology in the court of law prevents doctors from offering it. This leads to an increasing number of litigations. In this article, Dr. Dilip Walke probes the topic, offering readers an explanation on why apologies are helpful to avoid litigation and how to deliver apologies effectively.

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Are patients/relatives really looking for an apology?

Patient/relatives naturally want to know what exactly happened, why it happened, who was responsible and how it could have been avoided.

Studies prove that 98% will lose their anger if there is an apology without asking for it. This definitely will decrease the possibility of litigation. So with an apology, the possibility of litigation is less, but with no apology, litigation is almost guaranteed

Apology or no, the doctor should always be mentally prepared for litigation especially if the quality of apology was poor, if the disclosure was non-committal and non-transparent or despite a good quality apology there was death or a crippling complication.

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Why do doctors not offer an apology?

As already mentioned, doctors fear that if they offer an apology following any medical error, the patient may use it in court to prove guilt on the part of the respondent doctor. Doctors also fear that a document of apology may lead to the professional indemnity insurance company refusing the payment of compensation. The National Medical Council may take this as acceptance of guilt and may suspend or cancel the license in case the complainant registers a complaint.

Of course, the fear of losing the trust of the patient keeps haunting the doctor. There is a perfectionist culture that any doctor takes pride in, and hence the doctor feels that his self-esteem would get hurt if he apologises. Moreover, doctors generally lack the communication skill required for offering an apology.

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Is the fear of litigation a myth or reality?

Research papers from UK and USA have proved that the fear of increased possibility litigation after an apology is a myth. Hence in the USA, to allay this fear amongst the doctors, 36 States in the USA have enacted what they call “apology law” or “I am sorry” law for medical errors. As per these laws, the documentary evidence of an apology is not admissible in the court for medical negligence cases. Cases are judged by the merit of other documents.

Indian courts have yet to become mature to accept the ethos of a sincere apology. Most apologies by doctors are half-hearted. If a doctor does indulge in an apology, most of the times it is a half-hearted attempt making the apology inadequate.

Disclosure of facts is incomplete. Disclosure is done only if probed. There is no talk about future amends.  Non-committal words and sentences are used like;

• “Known complication” instead of “error”
• “Unexpected” instead of “preventable”
• “I am sorry it happened” instead of “I am sorry I made a mistake”

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If the possibility of litigation still exists after an apology, why should doctors apologise for their errors?

There are several benefits to the doctor after a good quality apology is given:

1. Psychologically, after an apology, the doctor feels “healed” and “confident”, especially if after the apology, the patient forgives the doctor.
2. Legally too there are several advantages. The complainant’s lawyer cannot use derogatory words like “bad” or “cruel” doctor with “no empathy”. Judges are more considerate and trials become weak from the complainant’s side despite there being an error from the respondent’s side.
3. The financial advantage is that the patient becomes more amenable to “Out of Court settlement”. Compensation if at all is lesser in presence of an apology.

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How should doctors apologise for their errors effectively?

The principles of communication in such an apology are different from routine counselling sessions because of the following reasons:

1. There is a power shift from doctor to patient because the error is from the doctors’ side.
2. It is not just about a show of empathy; it about accepting responsibility too.
3. It has to appear sincere; not just an attempt to cool off things.

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Who should apologise?

Primary physicians along with the responsible doctor/staff or administrator.

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When should the apology be offered?

As soon as a proper investigation is over. Delay leads to suspicion of deception.

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Where should it be conducted?

In a comfortable layout with the maintenance of privacy and room for emotional outbursts.

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Conduct of an apology

• Get facts and investigate if needed
• Get a mutually known person to accompany (this runs the risk of breaching privacy though)
• Ask and understand what the patient/relatives know
• Explain step-by-step what happened in simple language without the use of jargons
• Show empathy
• Finally offer an apology
• Discuss how the present medical condition can be managed and what precautions will be taken to avoid such accidents in the future
• Handle billing issues with concession
• Offer out-of-court settlements
• If the patient agrees, offer to continue the treatment under your care (with extra care)

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Conclusion

An apology should be seen as a tool to decrease potential litigation. Doctors should be made comfortable to apologise by formulating reasonable apology laws for India so that doctors will not hide facts and make a complete disclosure of all facts in the case. Teaching the communication skills for an apology is also needed if the doctor-patient relationship in our country has to become stronger and be built on trust.

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This article was originally published on May 20, 2021.

 

Disclaimer- The views and opinions expressed in this article are those of the author's and do not necessarily reflect the official policy or position of M3 India.

Dr. Walke is Dr. Dilip Walke is a former head of ethics and medicolegal committee of FOGSI.