Docs' 'sorry' wouldn't be admission of guilt

BY NICHOLE AKSAMIT AND ELIZABETH AHLIN
WORLD-HERALD BUREAU
http://www.omaha.com

“I’m sorry I screwed up” at a patient’s bedside couldn’t be interpreted as “I’m liable” in a Nebraska courtroom if state senators adopt a bill discussed Wednesday at the Capitol.

The proposed “I’m sorry” legislation, Legislative Bill 373, would make a health care provider’s expression of apology, fault, sympathy or compassion after a bad medical outcome inadmissible as evidence of liability in a malpractice case.

At a hearing before the Legislature’s Judiciary Committee on Wednesday, Omaha ophthalmologist and attorney Dr. Peter Whitted called the bill “patient safety legislation.” He said it would encourage more doctors to talk to their patients when things go wrong.

“The goal is to permit physicians to empathize with their patients and say to them, ‘I’m truly sorry that that happened’ and not have it used against them in court,” said Dr. Rowen Zetterman, president of the medical association and chief of staff at Omaha’s VA Medical Center.

But not everyone is cheering the bill, drafted by the Nebraska Medical Association and introduced last month by Sen. DiAnna Schimek of Lincoln.

“This is a ‘protect the doctor’ bill rather than ‘heal the patient,’ because the doctor can do all of these things without the bill,” said Sen. Ernie Chambers of Omaha, a member of the committee.

Christopher Welsh of the Nebraska Association of Trial Lawyers and Kurth Brashear, of the Nebraska State Bar Association both expressed concerns.

Welsh said his association didn’t object to keeping a doctor’s apology out of court but does object to keeping out an admission of fault.

Twenty-nine states have adopted laws barring apologies as admissions of liability in court. But Welsh said some “I’m sorry” laws allow admission of fault as evidence.

Brashear said the bar takes issue with a bill that would override a judge’s decision about what is admissible and a jury’s decision about what weight the evidence deserves.

Both also said they were concerned about creating a separate standard for medical professionals than exists, say, for attorneys or people involved in car accidents.

Schimek said the bill resonated with her because of a family medical experience a decade ago. Schimek said she suspects her husband was given a drug he wasn’t supposed to have during a hospital stay, but no one ever explained or apologized for his hallucinatory reaction. She said she didn’t sue, but she would have appreciated an “I’m sorry.”

“There will probably be just as many lawsuits as there ever were when something egregious happens,” Schimek said in an interview before the hearing. “This bill just says saying you’re sorry doesn’t mean that you’re culpable.”

Neither state law nor medical ethics require or bar a health care provider’s apology. And the frequency of either scenario – that an “I’m sorry” ends up as evidence of harm in court or that the possibility of a malpractice lawsuit ties a health care provider’s tongue – is unclear.

But the apology idea has caught on in other states and some local medical practices in recent years as a way to improve patient-physician communication and reduce malpractice litigation.

And according to insurers and medical groups that have embraced it – even without a law saying an apology isn’t an admission – the approach leads to fewer malpractice lawsuits.

Denver-based COPIC Insurance Co., which has a regional office in Lincoln and insures about 1,300 doctors in Nebraska, began encouraging physician apologies in late 2000 as part of a program to minimize malpractice payouts, patient-doctor disputes and time in court.

The company’s “3Rs” program (recognizing, responding to and resolving patient injury cases) focuses on being up-front with patients immediately when a bad outcome occurs, expressing regret and sorrow without assuming blame, and determining what can be done immediately for the patient and in the future to avoid such outcomes.

Kathy Brown, a COPIC vice president, said that none of nearly 3,250 patient injury cases that used the 3Rs program in its first five years proceeded to trial. About three-fourths were resolved without payment after medical professionals explained and apologized. And about 23 percent were resolved with cash payments.

“I think that the ability to express sympathy or empathy or regret goes a long way to maintaining open communication, which is really the crux of it,” Brown said.

“In most cases, patients want to know what went wrong, how can we avoid it moving forward and how do we address the current situation. And part of that is knowing that your physician cares.”
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