We've all been hurt in our lives, and we've all hurt others at some time or other without meaning to. Both feel awful. When we're on the receiving end of pain, we may become angry, depressed, or bewildered, especially if the pain was inflicted by someone we trusted. When we unintentionally hurt someone else, we may feel guilt, shame, regret, and maybe even fear of retribution.
When the injury is hurt feelings, an apology can make both the person who was hurt, and the one who did the hurting, feel better. But what about when the injury is more serious—even irreversible? That is the question that arises when a patient is injured or dies unexpectedly while under medical care.
For many years, physicians, nurses, and other medical care providers were advised or ordered by their employers not to apologize for adverse outcomes. The theory was that an injured patient, or a deceased patient's grieving family, might seize upon the apology as an admission of liability for the injury or death. Fear of a medical malpractice action kept many care providers from saying what they wanted to say, and what patients and their families wanted to hear.
Unexpected poor outcomes and deaths occur in hospitals on a regular basis. Sometimes those outcomes are unavoidable. Other times they are the result of medical malpractice: a surgical error, a nurse who makes an error in administering medication, a failure to diagnose a condition until it's too late to cure it.
Whether or not an adverse event is the result of malpractice, doctors often feel an urge to express their regret over what has happened. Most care providers enter the medical field because they want to help people. While they may understand the reality that they can't save every patient, they can't robotically turn off feelings of self-doubt, loss, and guilt when a patient is injured or dies.
Unfortunately, to many patients and their families, when medical providers fail to apologize for a loss or injury, "robotic" is exactly the impression that may be conveyed. While they are suffering shock, pain, and grief, the doctor or nurse appears to be feeling nothing at all, having been told not to apologize.
What's more, a patient or family may be more likely to sue for malpractice when the medical provider fails to say, "I'm sorry." They may perceive that the doctor is insensitive to their loss, or that they are trying to cover something up. This leads to suspicion and anger, and possibly to a painful and unjustified medical malpractice lawsuit.
The state of Oregon has recognized the power of an apology by physicians and other medical care providers by enacting ORS 677.082, which states:
(1) For the purposes of any civil action against a person licensed by the Oregon Medical Board or a health care institution, health care facility or other entity that employs the person or grants the person privileges, any expression of regret or apology made by or on behalf of the person, the institution, the facility or other entity, including an expression of regret or apology that is made in writing, orally or by conduct, does not constitute an admission of liability. (2) A person who is licensed by the Oregon Medical Board, or any other person who makes an expression of regret or apology on behalf of a person who is licensed by the Oregon Medical Board, may not be examined by deposition or otherwise in any civil or administrative proceeding, including any arbitration or mediation proceeding, with respect to an expression of regret or apology made by or on behalf of the person, including expressions of regret or apology that are made in writing, orally or by conduct. [2003 c.384 §1; 2011 c.30 §5]
This allows medical personnel to offer patients and families genuine compassion and recognition of their pain and losses without the fear that by doing so, they have admitted legal guilt.
Research indicates that many people pursue a medical malpractice case to make sure that someone else is not subjected to the same harm they experienced, and to force medical professionals to acknowledge their role in that loss. While this is understandable, it may lead people to act in a way that's driven by emotion, and is not in their best interest. Conversely, people who have received an apology for a bad medical outcome may be inclined not to sue for medical malpractice, even if compensation is needed and deserved.
The wisest course of action is to consult with an experienced Portland, Oregon medical malpractice attorney. An ethical attorney will bring objectivity, help you identify what you really hope to gain from a lawsuit, and will never advise you to sue if it's not in your best interest. A medical apology may be well-deserved and may make you feel better. However, if medical malpractice has occurred, you only have a limited time in which to make a claim. It's best to review your options with an attorney as soon as possible in order to preserve your rights.
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