When doctors apologize for medical error, it’s supposed to eliminate lawsuits.
But does it?
Not always. Comes now a case of medical error reported by the Philadelphia Inquirer.
Ricardo Blake and Erica L. Allen-Blake sued after their newborn girl died in Abington Memorial Hospital
Destinee Lotoya Blake arrived in this world by cesarean section after doctors determined the umbilical cord was wrapped around her neck. At 29 weeks, she was small, weighing just 1 pound, 9 ounces.
Six days later, on March 1, 2010, Destinee died in the neonatal intensive-care unit at Abington Memorial Hospital. Her path was perilous, but her death was preventable.
Within a week, John J. Kelly, Abington’s top doctor, invited Destinee’s parents into a conference room. He told them everything that happened, what had gone wrong. Others involved in Destinee’s care joined him. All expressed their sorrow.
Within a year, the couple filed suit, citing the meeting.
It’s a long, complicated story, as is most cases when something really goes bad. The point I want to study is this: doc makes a mistake, doc apologizes, doc gets sued. The parents actually attempt to use the doctor’s apology against him, citing it as an expression of guilt. Those of us who advocate for the power of apology in general and in the medical establishment should pay attention to this case.
Pennsylvania actually has a provision in the Medical Care Availability and Reduction of Error Act (MCARE) that requires apology in the case of medical error. Before the law was passed, the averaged 2,800 malpractice cases per year. After the law passed, malpractice cases went down to about 1,500 per year.
One issue still being fought in the legislature is whether apologies should be “protected” in that they may not be admitted as evidence. There are arguments for both sides of the question.
My Own View
My own view is to let the apologies be admitted as evidence, if the plaintiff is so unwise as to try. It seems to me that the last thing a plaintiff wants on the record is evidence of the doctor’s contrition, caring, and decency.
At any rate, apology is not cost-free. It’s just less costly than the alternatives of denial and defensiveness. Apologies that are offered without any risk are hardly worth the effort. Effective apology is not about hedging. It requires a full-throated statement of regret and admission of responsibility. It’s about the victim, not the offender.
As for the lawsuit, anyone can sue anybody for anything. In this case, the parties settled the lawsuit and no one is saying anything. I’m somewhat surprised that a malpractice lawyer would take the family’s case. The last thing a malpractice lawyer wants to face is a doctor defendant who has apologized. Lawyers would rather face docs who have clamped up, evaded, denied, or best of all from the lawyer’s perspective, lied, fabricated evidence, or altered records.
Those are the docs that juries love to punish, leading to the big awards that lawyers feed on. Remorseful doctors don’t provide the outrage lawyers need.
So my advice to doctors and hospitals is to cultivate a practice of robust apology when the situation warrants. Don’t be afraid of the occasional lawsuit.
Physician heal thyself. You’ll come out ahead in the long run.
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