Admitting Liability
Is Saying “I’m Sorry” an Admission of Guilt?
By Taiba Solaiman
TDIC Risk Management Analyst
What do you say to a patient when you discover that the treatment outcome did not turn out as planned? How should you inform a patient when the unexpected has happened? Comments such as, “That should not have happened,” or “I’ll pay whatever it takes to make this right,” may seem innocent, but may also lead to malpractice claims.
Typically, patients file lawsuits because they believe they have been wronged or feel abandoned. Providing an explanation and answering their questions, may be enough to quell their anger and anxiety. Conveying your concern about a poor outcome, without accepting or placing blame, may help improve your relationship with the patient as well as reduce the likelihood of litigation.
“I’m sorry” may be the most difficult words a dentist will ever have to say to a patient. If you experience untoward results, expressing sympathy without admitting liability to the patient and his/her family may help soften an emotional situation. Patients may also appreciate your candor and recognize that your primary concern is achieving their optimal dental health. When unexpected outcomes occur:
· Talk to the patient or family as soon as possible.
· Inform them, in a professional and solution-oriented manner, about what has occurred.
· Be compassionate, but avoid using terms that can be construed as admitting guilt such as, “I’ll do whatever it takes to fix this error.” “That should not have happened.” “This is my fault.”
· Document what happened, your course of action to resolve the problem and what you discussed with the patient.
· Notify your professional liability carrier for advice on managing the situation. (Do not put notes from these calls in the patient record; keep them in a separate file.)
How to apologize:
· Describe the incident and medical or dental response in brief, factual terms to the patient and/or his/her family.
· Show concern for the patient’s condition.
· Offer options for a solution or improvement of the outcome.
· Do not criticize yourself or other caregivers for a poor outcome.
· Do not brainstorm about what happened or why.
· Document the incident, the patient’s condition and plans for further follow up, if indicated.
Do say…
· I understand how difficult this is.
· I’m sorry this has happened.
Do NOT say…
· I’m sorry I did this.
· I wish I had handled this differently.
· I’m sorry; this is all my fault.
Currently, approximately 35 states have pending or passed laws allowing or declaring apologies inadmissible as evidence. The other states do not have statutory provisions allowing doctors to apologize or express condolences without fear of being subject to additional liability. These states follow the Federal Rule of Evidence 801 (d) (2) which “may construe an apology made by a healthcare provider as a statement against interest and thus subject to admissibility under the exception to hearsay.”
The following table lists the applicable state statutory provisions pertaining to TDIC’s policyholders.
|
State |
Statutory Provision |
|
Alaska |
No provisions. Federal admissibility laws apply. |
|
Arizona |
Apologies and similar gestures by healthcare providers are not admissible in court as admission of liability or admission against interest. |
|
California |
Apologies are inadmissible as evidence of liability. However, statements concerning negligence or culpable conduct that are part of or in addition to the apology are admissible. |
|
Hawaii |
Statements or gestures that express sympathy, commiseration or condolence are not admissible to prove liability. |
|
Illinois |
Apologies are not permissible in the court as admission of liability. |
|
Minnesota |
No provisions. Federal admissibility laws apply. |
|
Nevada |
No provisions. Federal admissibility laws apply. |
|
North Dakota |
A statement, affirmation, gesture or conduct of a healthcare provider, or healthcare provider's employee or agent, that expresses apology, sympathy, commiseration, condolence, compassion or benevolence to a patient or to a patient's relative or representative is not admissible as evidence of liability . |
|
New Jersey |
No provisions. Federal admissibility laws apply. |
|
Pennsylvania |
No provisions. Federal admissibility laws apply. |
It is important to be open and honest with the patient if an untoward event happens. Taking immediate steps to resolve the situation ensures the patient’s dental needs are met and may help sustain the doctor-patient relationship. Offering a sincere apology may allow you to control the direction of the outcome.
Note to members: TDIC is endorsed by the Alaska Dental Society as the preferred provider of professional liability insurance. For information contact TDIC’s Alaska representatives at Conrad Houston (800-770-7667 or 907-276-7667) or you may contact TDIC directly at 800-733-0634.
