Monday, May 19, 2008

Apology, Ethics, and the Law

An article about apology in yesterday's New York Times - "Doctors Start to Say 'I'm Sorry' Long Before 'See You in Court'" - reminded me of one of my pet peeves - the way physicians go limp in relation to the law.

The article summarizes a well-known trend in medicine - the recommendation that physicians acknowledge errors and apologize to patients who have been injured. It directs readers to the website of SorryWorks!, an organization that advocates for "disclosure, apology (when appropriate), and upfront compensation (when necessary), after adverse medical events."

For readers not familiar with the new paradigm for handling adverse events, here is how SorryWorks! defines it:

Step 1 - Initial Disclosure - is all about empathy and re-establishing trust and communication with patients and families in the immediate aftermath of an adverse event. Providers say "sorry" but no fault is admitted or assigned. Providers take care of the immediate needs of the patient/family (food, lodging, counseling, etc) and promise a swift and thorough investigation. The goal is to make sure the patient/family never feels abandoned. In the spirit of good customer service, pull the patient or family closer to the providers and institution.

Step 2 - Investigation - is about learning the truth. Was the standard of care breached, or not? We recommend involving outside experts and moving swiftly so the patient/family doesn't suspect a cover-up. Stay in close contact with the patient/family throughout the process.
Step 3 - Resolution - is about sharing the results of the investigation with the patient/family, and their legal counsel. If there was a mistake, apologize, admit fault, explain what happened and how it will be prevented in the future, and discuss fair, upfront compensation for the injury or death. If there was no mistake, continue to empathize ("we are sorry this happened"), share the results of investigation (hand over charts and records to patient/family and their legal counsel), and prove your innocence. However, no settlement will be offered and any lawsuit will be contested. SorryWorks! is compassion with a backbone.

The New York Times article explains how ill-advised recommendations from malpractice lawyers, combined with a lily-livered tendency in the medical profession to think too little about ethics and too much about law, led to the need for a "new paradigm" made up of what should have been old hat practice:

For decades, malpractice lawyers and insurers have counseled doctors and hospitals to “deny and defend.” Many still warn clients that any admission of fault, or even expression of regret, is likely to invite litigation and imperil careers.

My pet peeve comes from ethics consults and ethics workshops. Physicians often start by asking - "what's the law here?" I do my best to keep calm in responding - "let's start by figuring out what we think is the right thing to do, and then ask - 'how can we do it consistent with the law?'"

My strongest personal lesson about dealing with adverse outcomes occurred several decades ago. I was briefly involved with the psychiatric care of a college student who was experiencing acute and severe depressive symptoms. The student's family was in a crisis situation and the student felt that returning to college (at some distance) would help the depression resolve. After we explored this together, I agreed, and added "if it doesn't work out as we hope and expect, go to the infirmary right away."

Tragically, things did not go as I predicted they would. The symptoms did not lift. The student went to the infirmary, was admitted, but left and committed suicide.

I met with the student's family for a couple of hours. I listened to their feelings about the death. I cry easily, so it wasn't difficult to see my reactions. The family challenged me - why hadn't I done things differently? I said that in retrospect I certainly would have, and explained what my thinking had been at the time and why I did what I did. It was one of the most painful sessions in my career.

Some years later I got a message from a lawyer to call about the "X family." I gulped and returned the call, thinking I was about to be sued. The lawyer explained that family was bringing action against the college and wanted him to get information from me, but had instructed him - "make sure not to bring Dr. Sabin into this action."

The importance of direct communication with patients and families after an adverse event should be a no-brainer. How could we possibly not do it? And it doesn't take a law degree to understand how to express sadness and concern without saying, as in the Guys and Dolls song - "sue me, sue me, shoot bullets through me..."

Expressing sadness when a patient suffers is good manners, good ethics, and good medicine. The fact that my profession let foolish legal considerations choke natural empathy and human solidarity needs to be treated as an error to learn from. The lesson I have drawn is that ethics comes first. Then law.