No role for apology: remedial work and the problem of medical injury.

The past decade has produced ample evidence that patients are injured by medical care. A landmark document “To Err is Human” articulated a way to protect patients based on analysis of health care organizations according to complex systems and principles of human performance rather than “blame and shame”. To understand how to prevent injury, full – but protected – disclosure is required as well as institutional will to change. The literature is full of success stories all of which are based on frank and honest reporting of adverse events. Central to such reporting and analysis is the ability to discuss such events in the correct forum. In this Article, I argue that physicians should not apologize to patients who sustain medical adverse events. There are three main problems with the use of apologies. First, medical injuries usually occur at the “sharp end” of complex systems where more than one latent failure has also happened. The idea of one individual apologizing to another for a medical injury sustained as the result of medical care is therefore contrived and insincere. Second, apologies as opposed to other forms of remedial work – have a chilling effect on medical injury reporting and operates against the important social goal of increasing patient safety and third, legislatures attempting to enact common law and statutes to make apologies inadmissible in litigation vary widely among the states and render any attempted protections illusory. The main alternative approach to improving patient safety is that of deterrence and corrective justice as sought in medical malpractice litigation. With its selectivity, long time line, and individual client-focused approach, malpractice litigation cannot 1 DANTE ALIGHIERI, CANTO XVII THE DIVINE COMEDY: PURGATORIO, 282-83 (Robert M Durling ed. and trans., Oxford University Press, Oxford 2003) (1314): ed e chi per inguiria par ch’aonti siche si fa de la vendetta ghiotto, et al convien che ‘l male altrui impronti: DRAFT VERSION – not for citation © 2010 Steven E. Raper No Role for Apology: Remedial Work and the Problem of Medical Injury ii be expected to impact patient safety in any meaningful way. Only patients with severe to catastrophic injury can get their cases tried, leaving the vast majority of those sustaining medical injuries without compensation. The last section of this article discusses three main alternatives to ongoing legislative attempts to protect apology. First, state and federal evidentiary rules such as FRE 803(6) should be changed to strengthen protections for documents generated to improve patient safety. Second, legislative efforts such as the Patient Safety and Quality Improvement Act (PSQIA) of 2005 should be expanded into the states and directed at strengthening protection of peer review and institutional processes which are designed to get at the root cause of injuries as they happen, and to prevent similar injuries in the future. Third, physicians should be taught to disclose relevant details of injuries sustained by patients with accounts, an alternative type of remedial work which allows a focus on the injury but without the requirement of admitting regret, remorse, or responsibility. DRAFT VERSION – not for citation © 2010 Steven E. Raper No Role for Apology: Remedial Work and the Problem of Medical Injury iii Abstract i Table of