In the 1970s movie Love Story, Ali McGraw looks up at her big-screen husband, Ryan O’Neal, and utters the movie’s most famous line –“Love means never having to say you’re sorry.” That line works pretty well in a Hollywood blockbuster, but in the real world, not so much.
The truth is that “I’m sorry” is one of the most powerful phrases in the English language. Think about it. Have you ever faced a friend or loved one who is red-faced and livid with you over some perceived slight, and watched the anger melt away when you sincerely say “I’m sorry?” That’s the power of those two words.
In the business world, we also know the power of empathy. A study several years ago examined lawsuits filed by employees against their employers. A shocking number of those plaintiffs identified one primary reason they filed suits – feeling like their employers didn’t care, didn’t listen, or wouldn’t express empathy or sympathy with the employee, regardless of whether the issue involved an employer’s wrong doing or just a tough time in an employee’s life not caused by his or her employer.
The same thing is true for health care. We all know that health care providers have a legal obligation under state and federal law to keep patients and their families fully informed about all aspects of their care. More importantly, it’s just the right thing to do. Many times providers want to express sympathy for health status, failure to thrive or an unintended event. Why not do it more often? It’s the fear of being sued and having that “I’m sorry” used against you later in court as an admission of fault.
There’s a big difference between expressing sympathy for a patient’s or family’s situation and admitting the facility or organization caused that situation by negligent care. “I’m sorry for the situation” is not the same as saying “I’m sorry we messed this up,” and that’s a very important distinction.
Here in North Carolina, health care providers actually have a tool that allows them to say “I’m sorry for your situation” without fear of having that expression of empathy used against them later in court. Thanks largely to the efforts of the North Carolina Health Care Facilities Association, the N.C. General Assembly in 2004 enacted Rule of Evidence 413. This rule dictates what can and can’t be introduced in civil court proceedings.
Rule 413 provides “Statements by a health care provider apologizing for an adverse outcome in medical treatment, offers to undertake corrective or remedial treatment or actions, and gratuitous acts to assist affected persons shall not be admissible to prove negligence or culpable conduct by the health care provider in an action brought under Article 1B of Chapter 90 of the General Statutes.”
The Rule is designed to encourage, not discourage, expressions of sympathy and offers to help – a public policy goal that many states have embraced. Numerous other states have laws like Rule 413, so providers often can take comfort as they take advantage of this very important tool.
Okay, lawyers are writing this article, so we have to do that lawyerly thing and issue a small word of caution and some practice tips. Obviously, if handled the wrong way – i.e., phrased as “we messed this up and we’re sorry” – then Rule 413 and its equivalent in other states may not prevent that statement from being used in a later court proceeding.
Our second caution: Don’t let our first caution dissuade you from taking advantage of the freedom to say “I’m sorry and how can we help?” Instead, think about implementing some or all of the practice tips below, perhaps through a documented policy or procedure. These tips are designed to help you work within the protections of rules like Rule 413:
- Think about designating one or two people in your facility or organization to handle the “I’m sorry” discussion. These people should be genuine, represent management and/or the direct care staff with whom the patient and family deal most often, or a combination of the two.
- Think about having two representatives present during these discussions, which serves two purposes – it demonstrates that the expression of sympathy is sincere and comes from the entire staff and, obviously, it provides a witness to ensure that what’s said isn’t later communicated differently.
- Don’t be defensive in these conversations. Instead, be genuine and comforting. Don’t assign blame to the patient, family or other staff members, and don’t share details of internal quality or peer review discussions or findings related to the matter. The point of these conversations is simply to say “I’m sorry this happened to you and that you’re going through this.”
- As with everything else we do in health care these days, it’s a good idea to document these discussions in the patient’s medical record. When doing that, stick to the facts. Document the time and date of the discussion, persons present, what was discussed and plans for follow-up (if made).
Don’t let these practical words of wisdom stop you from following your heart and conscience with patients and families. Each provider has to decide how to handle these situations and how best to approach them. Our advice is to follow your conscience, but just use a little common sense along the way. Typically, a sincere “I’m sorry” coupled with a little common sense is great for everybody involved – the patient, the family and your staff. Whether or not those efforts keep disgruntled patients or families from suing you later really isn’tthe point. Rule 413 and others like it are designed to allow providers to do what they feel is right without having to worry about it later.