Knowing when, where and how to say sorry can often make a big difference in healthcare.
The prospect of making an apology to a patient is a dilemma most doctors will grapple with at some point in their professional lives.
Whether it is an expression of regret that there has been a complication in treatment or unwanted outcomes, or it’s to convey sympathy or condolences, saying sorry can be mired in fear.
And it can lead doctors to say nothing at all, which can make things worse.
Anthony Mennillo, MIGA’s Head of Claims and Legal Services, says it’s a complex issue.
“It’s something that medical practitioners are always worried about, particularly with not so much saying sorry, but the ‘what does it mean?’,” he says.
“And is it an admission of liability and will it be used against them? That’s certainly a concern that many medical practitioners understandably have.”
When outcomes are not what patients hope or expect, Mr Mennillo says there is a natural tendency for doctors to be apologetic “and that is entirely appropriate”.
MIGA’s June 2024 edition of The Communiqués, Clinical Communiqué examined a case that highlighted the importance of communication and honesty. Available at https://www.thecommuniques.com/post/clinical-communiqu%C3%A9-volume-11-issue-2-june-2024.
Mr DF (his identity was not published) was a 67-year-old man who underwent surgery for a hiatus hernia. Post-surgery, he experienced severe pain, but his symptoms were not adequately addressed.
“After multiple visits to the emergency department and a series of diagnostic tests, it was discovered that he had a twisted stomach, leading to bowel ischemia and perforation,” the report reveals.
“Despite several surgeries, Mr. DF succumbed to his condition. Despite the root cause being complications from the hiatus hernia surgery, because Mr DF’s final admission was in ICU and in a condition where death was not unexpected, his matter was not referred to the coroner.”
More than six years later the Northern Territory Coroner’s court received a letter from DF’s wife seeking answers about her husband’s death.
In addition to her letter to the coroner, Mrs DF described evidence that “described minimal contact with doctors during her husband’s nine-day ICU stay and no proper explanation as to her husband’s cause of death beyond the death certificate”.
“The coroner identified several concerns with Mr DF’s care, however, was particularly scathing about the eight-year delay for Mrs DF in receiving a proper explanation,” the MIGA report reveals.
Mr Mennillo says this case highlights some important issues – especially around communication. He said fear of adverse legal outcomes often causes doctors to clam up.
“In the case example the family member was looking for a response, and the tendency might have been to meet with them and apologise quickly, he explains.
“You’re not going to have all the information available, but you will very likely have some information to get some understanding of the case before you go and speak to the family. That needs to happen as soon as reasonably possible. But it doesn’t have to happen immediately.
“It helps the practitioner to at least be forewarned and armed with some information to be able to give a proper explanation, because sometimes the worst thing that happens is you meet with the family too soon and without any information and you don’t have anything of substance to offer the family.
“The family leaves thinking ‘well, that was unhelpful, and the doctors and the hospitals and the health entities are ducking and weaving, they’re not giving us answers’, and all that does is increase frustration and anger.
“You want to be in a position to say, ‘We’re sorry this has happened. We are still investigating it but his is what we do know’.
“That’s a much better approach than going in and not being able to answer any questions whatsoever, or to go in there and say something like ‘we’re really sorry this has happened we’ve done the wrong thing’, when that might not be the case at all.”
Mr Mennillo says there is a big difference between saying “I’m sorry for your loss” and “I’m really sorry I messed up and this shouldn’t have happened”. The first is not an admission of liability but the second is.
Every Australian jurisdiction has legislative protections that prevent an apology or show of empathy from being used as evidence.
“That creates an exemption, that there’s no admission of liability for an expression of regret,” Mr Mennillo explains.
“There is a very different connotation and liability position if you apologise for a situation that a patient or person is in, as opposed to apologising that you have made a mistake.
“If you apologise to say, I’m sorry, I’ve made this mistake and this has caused you an injury, or worse, then it effect that is an admission of liability, or very likely to be an admission of liability, and so you need to be very careful about that.
“The expression of the admission of liability in that situation will not be protected by the legislation, but the legislation does protect expressions of regret, that is saying sorry for an outcome, without accepting responsibility necessarily for the outcome.”
He says that in some circumstances the doctor has made a mistake. But what is communicated to the patient and their family needs to be carefully considered with professional guidance.
“They [doctors] are human, and so it is appropriate to apologise that they have made a mistake, and if that means an admission of liability, so be it,” he says.
“But in those situations, that should be discussed with your medical indemnity insurer before you even have those discussions that with a family member [if the patient is deceased] or with a patient.”
The Australian Commission on Safety and Quality in Healthcare has developed an Open Disclosure Framework to support a consistent approach across all healthcare settings. Available at https://www.safetyandquality.gov.au/our-work/clinical-governance/open-disclosure.
Mr Mennillo says how apologies are made can also be important, another reason why getting professional advice is important, especially if a mistake has been made.
“If it turns out, after the proper investigation that a mistake has caused an injury to an individual, then our advice is the same – be upfront about it, that it is going to come out eventually,” he says.
“In my experience, it is far better to be open about it. You’re going to have a range of responses. You’ll have a patient that says, ‘well, I’m going to sue you’, and they do sue, and it’s an indefensible claim, and we manage it that way.
“Likewise, there are patients that appreciate the honesty and appreciate the genuineness of the doctor to try and fix the outcome.”
Mr Mennillo says data shows that being open and communicating with patients where there’s an adverse outcome will always result in better outcomes.
“You will have a better relationship with your patient,” he says.
“And once you have a good relationship with your patient and are open with them, they’re less likely to make a claim or complain.”
