Adverse events are bound to occur over the course of a physician’s career. If a procedure does not go as anticipated or your patient develops an unforeseen complication, you may not know how best to address the situation with the patient and the patient’s family. Undeniably, the fear of litigation can also be a factor in these circumstances, regardless of the cause of the adverse outcome.
When bad outcomes happen, it is the physician’s duty to address the event with the patient and family. A conversation discussing an adverse patient outcome must be approached with the utmost caution. It is preferable to address adverse outcomes as close to the incident as possible to prevent patient confusion and frustration. A physician must choose his or her words carefully, providing the appropriate combination of support and information to the patient and family members.
Below are some strategies to keep in mind when confronting an adverse event that may help reduce the chances of a medical malpractice lawsuit:
Don’t “deny and defend.” Getting defensive and expressing unwillingness to discuss the adverse event fully can lead the patient to feel resentful or lose confidence in your care. Studies show that where patients feel their physician is concealing information, they become angry and are more likely to pursue litigation. Patients sometimes bring a medical malpractice action to get the answers they feel they cannot get directly from their physicians. If you are concerned about communicating with a patient or family member because you feel you are at risk for litigation, contact Keystone Mutual immediately for assistance.
Be Empathetic. Although this appears self-evident, it is important for a physician to express to the patient empathy for his or her adverse outcome. It is okay to express regret, and even say “I’m sorry,” without admitting fault or a deviation from the standard of care. Patients and their families find comfort in the fact their physician is alert to their needs and has a desire to support them to the greatest extent possible.
Moreover, 36 states and the federal courts have adopted “sympathy-only” apology laws in recent years to promote apologetic communications between patients and physicians. These statutes prohibit the use of a physician apology to a patient and family members as an admission of fault against the physician in a medical malpractice lawsuit. The relevant Missouri statute reads as follows:
The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. However, nothing in this section shall prohibit admission of a statement of fault.
The Missouri law defines benevolent gestures as “actions which convey a sense of compassion or commiseration emanating form human impulses.” Missouri’s statute only encompasses discussions relating to pain, suffering or death. Of importance, it does not protect non-sympathetic, fault admissions from being used in court.
The following is an example of a statement of sympathy that may be protected from admission as evidence of an admission of fault by the Missouri apology statute: “I am sorry for the way things turned out; this is an unfortunate event. We will do everything we can to make you comfortable and get you home as soon as possible.” On the other hand, the following is an admission of fault which is not protected by statute: “I jumped the gun…I made a mistake…this was my fault…I’m so sorry, this never should have happened.” Be thoughtful about how you inform your patient or the patient’s family about an adverse event or unexpected complication.
Ask and answer the patient’s and family’s questions. After you explain the event or result to the patient and the patient’s family, ask them what questions they still have and if there is any additional information they would like to know. Explain the events simply, without minimizing the complexity of your procedure, so the patient and family can understand why a bad outcome is not necessarily the result of negligence or malpractice. One study found that patient uncertainty as to the reason for a bad outcome raised litigious feelings nearly as much as the perception of physician fault, proving the benefits of effective communication.
Ask for assistance. Find available risk management resources to strategize conversations with the patient and their family. Keystone Mutual has personnel trained to deal with adverse patient encounters and can give insight into best practices in dealing with adverse outcomes.
Bad patient outcomes are virtually unavoidable in the medical field. Addressing the complication using effective communication, centered on the patient’s questions and concerns, may help reduce the chances of litigation. Keep in mind that since adverse events may inevitably lead to a lawsuit regardless of what you say to the patient, you should contact Keystone Mutual and report the incident as soon as possible. In this instance, if you feel there are concerns with fault or negligence, you can reveal them. Unlike conversations with the patient of family members, all communications about the events with Keystone’s staff or a lawyer Keystone hires to represent you are protected by the attorney-client privilege. This will allow you to more freely express yourself about the event without fear of reprisal.
2 NM Saitta and SD Hodge, Jr. Physician Apologies. The Practical Lawyer, 35-43, 37. (Nov. 2011). Access online at
3 See RSMo §538.229(1).
4 GW Lester and SG Smith. Listening and talking to patients: A Remedy for Malpractice Suits? West J Med, 158:268-272, 271-272 (1993).