Malpractice: Admissions and the Medical Apology

If a police officer pulls you over—and you both know full well you were speeding—he or she typically asks, "Do you know why I stopped you?" The officer is trying to elicit an admission of guilt from you, such as, "But officer, I was only going eight miles over the limit." That is self-incrimination, and as Miranda makes clear, you have the right to remain silent because what you say can and will be used against you.

Although medical malpractice lawsuits are civil and not criminal proceedings, sometimes admitting what you did wrong may prevent a medical malpractice claim.

But other times, such an admission could result in a slam-dunk malpractice case against you. So it's best to know what to say and how to say it.

The medical apology
Although some providers disagree with offering a medical apology after an adverse incident, hospitals, medical centers, risk managers, and malpractice insurers increasingly recommend it.

A study published in the Journal of the American Medical Association concluded that subsequent to committing medical mistakes that harmed patients, providers were not providing the information and emotional support those patients needed, and that failure resulted in an increased likelihood of a malpractice claim.

After any questionable event, try to be open, honest, communicative, and understanding while making yourself fully available to the patient and/or his or her family.

The medical apology has four components:

• The acknowledgment includes details of the event, the persons involved, and the unacceptable nature of the behavior.
• The explanation is the exact reasons for the event. (Stating there is no explanation yet is acceptable.)
• Remorse is the genuine expression of contrition; if the expression is false or simply a pretense, the listener will sense it, and the apology will do more harm than good.
• Reparation is an attempt to make things right, even in a small way.

In some states, such an apology is perfectly acceptable; in others, it's an admission against interest and evidence of malpractice. Your malpractice insurer or risk management department can provide guidance on your state's laws.

Real-world case study
An elderly patient presented to the hospital for major abdominal surgery performed by an attending surgeon. The procedure was successful. After seeing the patient on the first post-op day and noting recovery was progressing normally, the attending surgeon proceeded with a planned vacation.

On the second and third post-op days, the nurses observed a gradual deterioration of the patient's condition, which they recorded in their notes and verbally alerted the covering attending surgeon. On the fourth post-op day, the patient continued to deteriorate, and the covering attending surgeon finally called the vacationing attending surgeon, who made some general inquiries but did not further contribute to the patient's care. On the sixth day, the patient crashed and died the next day.

The attending surgeon returned home, met with the family, apologized, and said, "This never should have happened. It's my fault for not returning early to take care of her and for not ensuring she was in good hands when I left. This was a mistake that could have and should have been avoided."

The attending surgeon later told me he said these things to appease and comfort the family, although he did not believe he or any other healthcare provider committed malpractice. But in the resulting lawsuit, the attending surgeon, covering attending surgeon, nurses, and hospital were all forced to settle.

The attending surgeon's statements implicated the entire medical team caring for the patient; each healthcare provider involved in the patient's care was held legally responsible in some way. (This incident took place in Florida, where a physician's apologetic statements are considered an admission against interest and can be used as evidence of malpractice.)