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In March, Oregon Governor John Kitzhaber signed a bill offering patients and doctors an alternative to malpractice lawsuits when adverse events occur. Senate Bill 483, dubbed “Safe Harbor” legislation, is designed to improve patient safety and care, while providing a “safe harbor” for doctors and patients to discuss medical errors outside of litigation.

The question that many have is whether offering protection to physicians so that they can honestly and frankly discuss medical errors with their patients is going to reduce malpractice litigation.

When is an apology enough? And when is an apology not just an apology?

A recent article in Health Affairs (PDF) discussed this very question: do these “disclosure and resolution” programs reduce liability costs? The programs studied may be broader than a simple safe harbor protection: these programs included full disclosure to the patients, apologies, and compensation offers.

While Oregon’s new legislation allows for disclosure, mediation, and settlement outside of litigation, it remains to be seen whether the primary purpose will be disclosure as a means of improving patient safety or disclosure as a means to reduce litigation.

“Disclosure and resolution” programs often include offers of compensation as a defining feature, but policy studies have not yet provided evidence that apologies plus compensation yield improved outcomes or improved patient safety. Further, coupling an apology with compensation in exchange for a waiver or release can leave patients feeling like they are being railroaded into an agreement at a time when they aren’t mentally prepared to consider the impact of that decision.

After studying a handful of disclosure and resolution programs nationwide in 2010, the authors’ conclusions and findings highlighted the complicated nature of human motivation and perception.

  • Generous offers to survey respondents were viewed more suspiciously than were more nominal offers.
  • Apologies that accompanied generous offers didn’t go over so well either: respondents viewed them negatively and made in the physician’s self-interest.
  • There is a paradox when it comes to apology and disclosure when combined with compensation: it reduces the patient’s satisfaction in the pre-litigation resolution process.

In my experience, being honest and open helps set people at ease. Even when faced with bad news, people do not respond well to shrouded details. I have worked on many cases where clients lamented that they just wanted an apology or simple acknowledgement that something went wrong and a mistake was made.

This recent study on disclosure and resolution programs may contradict this, and it is not to say that every patient given a genuine apology will not sue. But on the whole, disclosure and apology with the goal of patient safety in mind is important. Disingenuous apologies and appeasements don’t help improve patient safety, and they don’t leave injured patients feeling positive about the resolution.

As Oregon’s Safe Harbor legislation is worked out it will be interesting to see the results. Will Oregon trial lawyers see it as an important first step in resolving difficult situations? Will physicians find that it is beneficial to them and their patients? Most importantly, will patients feel like they got the real deal from their doctors after a mistake was made?

Or will they feel like the apology was not an apology?

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