Medicolegal Issues
10 strategies for the hot seat: Giving a successful deposition
You aren’t powerless even though you’ve been put under a microscope. A defense attorney offers strategies to remain calm, bolster your position,...
And all of this is good—but still not enough.
When an apology may be advisable
In some cases an apology may be in order when things go wrong with patient care—and sometimes it can help defuse the tensions that arise when a bad outcome happens. For example, in an article titled, “The Last Word: The Power of Apology” a clinician’s thoughts are depicted as follows1:
I felt awful. I didn’t know if there was any way I could have known or anything I realistically could have done, but part of me blamed myself.… After a brutal day at the office with a packed patient schedule, I had one more difficult stop to make before going home. I had to go tell a person whose family had entrusted me to be their doctor that “I’m sorry”… Walking up to the hospital room, I rehearsed in the stairwell what I was going to say. “I’m sorry.” “I want to apologize.” “This is indeed unfortunate what has happened.”
Where was the right balance between sincere apology and excessive self-blame? How would this patient and the family react? Would they kick me out of the room and open up the yellow pages to find the closest malpractice attorney? Maybe.
The physician came up with a plan, reviewed it one last time right outside the door, took a deep breath and entered the room, “I’m so, so, so, sorry this happened to you.”1
The hour that followed focused on what had happened and what other physicians had told the family when they weighed in. Bottom line? There was agreement that it was a complex and tragic case. As the doctor exited, the family inquired, “You’ll still be our doctor, won’t you? We love you. You are our friend.”1
The tension left his shoulders as the physician reflected on the importance of honesty and humility and apologizing appropriately.1
Saying “I’m sorry” can be a rewarding experience.
References
- Cohen ML. The last word: the power of apology. Fam Pract Manag. 2010;17(1):40–41.
Are you responsible for reporting your colleagues’ behavior?
An important part of a hospital’s or practice’s quality assurance is the day-to-day observations of physicians, nurses, and staff members. Courts have been increasingly insistent that an institution may be liable when its physicians or nurses witness inappropriate medical practice but fail to take action to protect patients. Inappropriate practices include:
- undertaking procedures for which the clinician is not qualified or credentialed
- violating hospital or practice policy or
procedures - causing problems for patients or others.
In “The case of the unusual pen,” the plaintiffs claimed that the institution failed to “discover, stop and report” the physician because its staff was not trained to recognize and report inappropriate conduct. For example, the physician routinely may have performed gynecologic exams without a medial assistant in the room. The hospital described the physician as a “rogue” employee whose actions could not have been discovered, according to the facts we know—but the plaintiffs claimed that the hospital should have known what the physician was doing. Whatever the details of this actual case, the continued, undiscovered misconduct of a physician is, at best, bound to raise questions as to why the hospital or practice did not know about it and take action.
That brings us back to the hypothetical situation that began this article:
CASE: Next steps to confront the issue
In your role as president of the practice, you are asked to comment on a colleague’s questionable behavior.
Do you issue a statement regarding that behavior and let the matter ride, or is more action advisable?
From a legal standpoint, the suggestion that a clinician’s problem behavior is being brought to the attention of the president of the practice is positive. Identifying the problem is only the first step, however. Being asked to comment on the colleague will not be enough. Your responsibility to the practice has now been triggered and you must undertake appropriate procedures. Summarily (and inappropriately) dismissing the colleague may result in all kinds of problems, not to mention a lawsuit. Yet just observing the situation for a few months carries other legal risks. The practice or institution undoubtedly has a standard set of procedures, and you immediately should begin implementing them. These procedures usually involve informal steps—investigating the situation and giving the physician the opportunity to respond.
When the matter is outside of routine, as this case may be, we believe that it is worthwhile to consult a legal expert. Beyond the duty to patients, there are likely to be contractual obligations and complex business law issues. Ideally, the practice has an ongoing relationship with an attorney who is an expert in health matters. Knowing your practice, the attorney can be invaluable in helping you avoid problems and find a resolution to the problems that arise, and he or she should provide consultation if the matter requires formal processes.
