I m Sorry may be more complicated than you think. A Letter from the. Chair of the Board. Volume 14, No. 1 Spring 2006.

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1 Volume 14, No. 1 Spring 2006 A Letter from the Chair of the Board Dear Colleague: In 2005, The Virginia General Assembly enacted into law an I m Sorry statue. The impact of this legislation on the Physicians of Virginia is the focus of this edition of the Doctors RX newsletter. Understanding the implications of this statute is important as Physicians continue to address communication issues in the Patient-Physician relationship. Sincerely, D. Ted Lewers, M.D. Chair of the Board Medical Mutual Liability Insurance Society of Maryland and Professionals Advocate Insurance Company I m Sorry may be more complicated than you think In the Fall/Winter 2005 edition of the Doctors RX newsletter we shared with you a detailed discussion of Maryland s I m Sorry statute which took effect on January 11, This type of legislation is being enacted in many states and we had the opportunity to conduct a thorough legal review of the Maryland statute. The Virginia General Assembly enacted legislation during the 2005 session that became effective July 1 that is strikingly similar to the Maryland statute. This newsletter will take a look at the Virginia statute and provide a similar review of the specific language contained therein. RECOMMENDED COURSE OF ACTION: 1. First and foremost, attend to the patient s clinical situation. 2. Gain an understanding of the clinical course. Discuss the patient s condition with other health care providers to the extent that such discussions are germane and helpful to the patient s clinical condition and the patient s treatment. Avoid discussions that do not have a clinical purpose or are not part of formal peer review. 3. Meet with the patient and/or designated family members. Provide the patient with a medical explanation of what occurred. Explain that the outcome was not preferred and be prepared to offer an apology in general terms. For instance, consider the simple statement, I m very sorry, or I m very sorry this has happened. Continued on next page

2 Instructions for CME Participation CME Test Questions CME Accreditation Statement, which is affiliated with the Professionals Advocate Insurance Company, is accredited by the Accreditation Council for Continuing Medical Education (ACCME) to provide continuing medical education for physicians. MEDICAL MUTUAL designates this educational activity for a maximum of 2.0 AMA PRA Category 1 Credits. Physicians should only claim credit commensurate with the extent of their participation in the activity. Instructions to receive credit, please follow these steps: 1. Read the articles contained in the newsletter and then answer the test questions. 2. Mail or fax your completed answers for grading: Med Lantic Management Services, Inc. Fax: International Circle P.O. Box 8016 Hunt Valley, Maryland Attention: Risk Management Services Dept. 3. One of our goals is to assess the continuing educational needs of our readers so we may enhance the educational effectiveness of the Doctors RX. To achieve this goal, we need your help. You must complete the CME evaluation form to receive credit. 4. Completion Deadline: August 31, Upon completion of the test and evaluation form, a certificate of credit will be mailed to you. Please allow three weeks to receive your certificate. proceeding related to such civil action, the portion of statements, writings, affirmations, benevolent conduct, or benevolent gestures expressing sympathy, or general sense of benevolence, which are made by a health care provider or an agent of a health care provider to the patient, a relative of the patient, or a representative of the patient shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest. A statement of fault that is part of or in addition to any of the above shall not be made inadmissible by this section. In effect, the Virginia statute establishes that expressions of sympathy or benevolence made by a health care provider to a patient will not be admissible in evidence at trial in the course of a medical malpractice lawsuit. This means a jury or finder of fact would never learn about the statement. This would not be true, however, if the expression of sympathy or benevolence was accompanied by an admission of liability or fault. In that circumstance, a jury or finder of fact would be entitled to know about the statement and could view such a statement as evidence of fault on the part of the health care provider. The Virginia law was enacted as part of the current trend toward encouraging Physicians and other health care providers to express empathy, sympathy and even contrition to patients who have suffered unfortunate outcomes. The legislatures of about 15 states have passed similar statutes that, with some variation in theme, place limitations upon the admissibility of apologies. The purpose of these statutes is to provide health care 1. The new Virginia statute allows expressions of sympathy or benevolence to be admitted into evidence in a medical malpractice trial. 2. A jury or finder of fact will be entitled to learn of expressions of sympathy that include an admission of liability or fault. 6. When meeting with patient/family members regarding an unexpected outcome, separate the apology from the explanation or discussion of medical options. 7. A Physician s statement may be admissible for one purpose but not for another. 3. In the Deitsch case, the Physician s benevolent gesture was admitted into evidence. 4. Determining whether a statement should be introduced into evidence can be problematic. 5. A patient is entitled to testify as to his/her recollection of a particular event. 8. The Virginia statute suggests a heightened standard of care for health care professionals who have a personal relationship with a patient or a patient s family member. 9. The Virginia statute is part of a trend toward encouraging Physicians and other health care providers to express empathy to patients who have suffered unfortunate outcomes. 10. Always respond to accusations made by the patient or their family.

3 Do not feel the need to make your apology any more elaborate than the suggestions above. Separate the apology from the explanation or discussion of options: I m very sorry this has happened. Now, let s talk about your options for future treatment. Do not respond to accusations by the patient or the patient s family. Avoid admitting fault or liability. Any apology which either (1) calls into question your clinical course or clinical judgment or (2) suggests that your treatment or your judgment was the cause of the patient s unfavorable result would be considered an admission of fault and should be avoided. For instance, I m sorry; this was my fault, or I m sorry; I should never have tried this procedure, or I m sorry; I should have tried a different approach, or I m sorry; it was clearly my method of treatment which caused this problem, or I m sorry; it was just a mistake, or I m sorry; I guess I was wrong, after all are all forms of apologies accompanied by admissions. These will be considered admissible evidence, and will be used against you in the event of a lawsuit. 4.Advise the patient of the need for future treatment. 5. Provide additional information to the patient/family as it becomes available. 6. BE ACCESSIBLE This conversation, while sympathetic, should be medically factual and not based on conjecture. Do not speculate. Remember that your demeanor will communicate as strong a message to your patient as your words. To the extent your words have limited protection under the new statute, your demeanor can only help you so long as your expression of sympathy is sincere and is delivered to your patient in a manner that lets your patient know that you are sincere. CME Evaluation Form Statement of Educational Purpose Doctors RX is a newsletter sent twice each year to the insured Physicians of MEDICAL MUTUAL/Professionals Advocate. Its mission and educational purpose is to identify current health care related risk management issues and provide Physicians with educational information that will enable them to reduce their malpractice liability risk. Readers of the newsletter should be able to obtain the following educational objectives: 1) gain information on topics of particular importance to them as Physicians, 2) assess the newsletter s value to them as practicing Physicians, and 3) assess how this information may influence their own practices. Objectives for I m Sorry May Be More Complicated Than You Think Educational Objectives: Participants should be able to: 1) Describe the basics concepts of Virginia s I m Sorry legislation. 2) Understand potential implementation issues of the statute. 3) Understand what actions they need to take in dealing with unexpected outcomes. If you experience an untoward event that you are unsure as to how to handle, or feel you need further guidance before proceeding, please contact the Risk Management Services Department for assistance. We strongly recommend that Physicians continue to hone their communication skills it can only inure to your benefit. Strongly Agree Strongly Disagree I m Sorry may be more complicated than you think Rodney K. Adams, Esquire Rodney K. Adams is an attorney in the Virginia law firm of LeClair Ryan and has been advising and defending health care providers for almost twenty years. Mr. Adams is a member of the Defense Research Institute, the Virginia Association of Defense Attorneys, the American Health Lawyers Association, the American Bar Association, and the Virginia State Bar. He frequently lectures on bioethics, medical records management, managed care issues and risk management topics to a variety of health care organizations and providers. The intent of the Virginia General Assembly was to encourage Virginia Physicians to express their sympathy to a patient and/or their family members following an unfortunate outcome and to protect that expression of sympathy from being used against them in a court of law. Va. Code :1 states, in part: In any civil action brought by an alleged victim of an unanticipated outcome of health care, or in any arbitration or medical malpractice review panel Part I. Educational Value: I learned something new that was important. I verified some important information. I plan to seek more information on this topic. This information is likely to have an impact on my practice. Part 2. Commitment to Change: What change(s) (if any) do you plan to make in your practice as a result of reading this newsletter? Part 3. Statement of Completion: I attest to having completed the CME activity. Signature: Date: Part 4. Identifying Information: Please PRINT legibly or type the following: Name: Address: Telephone Number:

4 Physician s decision (the patient told me he was abusing drugs, so I ordered a hepatitis screen), but it may not be admitted as evidence that the patient was abusing drugs. Similarly confusing is the distinction set forth in this statute. I m sorry, should not be admissible, but I m sorry that I negligently perforated your bowel, would be. Unfortunately, determining on which side of the distinction a particular statement falls can be difficult. This is further complicated by the fact that what was said may be recalled differently by the Physician and by the patient. The patient is entitled to testify as to his/her own recollection of the event. providers with some measure of protection so that they may more freely offer expressions of apology, regret, condolence, etc., without fear that these expressions will be taken out of context and come back to haunt them if a lawsuit is filed and they find themselves before a jury trying to defend against allegations of medical negligence. While empathy and sympathy may be protected under the statute, statements that contain admissions of fault or liability are not. This is a point that cannot be overemphasized and, unfortunately, not always easily applied to a given situation. An expression of sympathy may quite easily be misunderstood as an admission of liability. For example, I m sorry. I wish I had anticoagulated him before doing the cardioversion sounds like an admission of fault. Many judges are likely to leave it to a jury to decide whether it is or not. If the Physician s defense is that the standard of care was not to anticoagulate before cardioversion, then the statement is likely to be harmful. Confusing to Physicians is that a statement may be admissible for one purpose but not for another. For example, a statement may be admissible as evidence for a The Virginia statute has been followed in the only reported decision to date. In Deitsch v INOVA Health Care Services, a cardiologist told a parent, who he knew socially, I am sorry I wasn t there. I didn t hear your name I didn t hear that it was Rabbi Deitsch. The trial judge excluded the statement as a benevolent gesture as it was not intended to say that a pediatric cardiologist should have been present. The statement was an expression of remorse for a perceived interpersonal social failure rather than an admission of professional negligence. The judge added that the Doctor s decision to take the parent aside to privately explain what had occurred was precisely the type of benevolence that the General Assembly had in mind in enacting this statute, and to admit the statement, would suggest a heightened standard of care for health care professionals, who, by chance, turn out to have a personal relationship with a patient or a patient s family member. No such heightened standard of care presently exists under Virginia law, nor does this court believe that such a standard of care should be created, the judge concluded. Taken out of context, a judge could have easily reached the opposite result. The Virginia General Assembly has made the decision to attempt to foster an atmosphere of openness between health care providers and patients in the face of an untoward outcome in the belief that this openness will lead to greater patient satisfaction and that eventually we will begin to see a reduction in the number of malpractice lawsuits as a result. The new statute is the product of that decision. Whether it will achieve that goal will not be known for years to come. Numbers you should know! Home Office Switchboard Toll Free Incident/Claim/ Lawsuit Reporting ext. 163 Risk Management Seminar Info ext. 223 or 225 Risk Management Questions ext. 224 Main Fax Claims Department Fax Web Site This article should not be taken as a substitute for sound legal advice nor for the exercise of proper judgment. It is intended only to point out new legislation and some of the potential issues that might arise in the future as the result of the legislation. Doctors RX Elizabeth A. Svoysky, J.D., Editor Director of Risk Management Services D. Ted Lewers, M.D., Chair of the Board Copyright All rights reserved. Articles reprinted in this newsletter are used with permission. The information contained in this newsletter is obtained from sources generally considered to be reliable, however, accuracy and completeness are not guaranteed. The information is intended as risk management advice. It does not constitute a legal opinion, nor is it a substitute for legal advice. Legal inquiries about topics covered in this newsletter should be directed to your attorney. All faculty/authors participating in continuing medical education activities sponsored by MEDICAL MUTUAL are expected to disclose to the program participants any real or apparent conflict(s) of interest related to the content of their presentation(s). Mr. Rodney K. Adams has indicated that he has nothing to disclose.

5 Reduce your liability risk and your insurance premium! The Risk Management educational program, Taking the Right Steps to Manage Patient Expectations, is in full swing for 2006! Make sure you get the best possible opportunity to attend the program, date and location of your choice by registering now for one of our important seminars. Virginia Physicians can choose between Medical Matters and Health Care Decisions Act. Participating Physicians earn CME credits and a 5% premium discount on their next ProAd policy renewal. Register online! It s easy, quick and secure. Volume 14, No. 1 Spring 2006 Home Office: Professionals Advocate Insurance Company Box 8016, 225 International Circle Hunt Valley, MD PRST STD U.S. POSTAGE PAID PERMIT NO BALTIMORE, MD