Ep74: Saying Sorry- Medical Injury Part 1

Ep74: Saying Sorry- Medical Injury Part 1
21 October 2021

Fellows of the RACP can claim credit for listening to this episode and reading supporting resources via MyCPD.

Medical injury occurs at a rate of about 12 per cent of admissions, and errors without consequence at a higher rate still. According to Australian and NNew Zealand guidance documents, disclosure of error “is a patient right, anchored in professional ethics, considered good clinical practice, and is part of the care continuum.” But many practitioners are fearful of the medicolegal consequences of disclosure, or unsure about how to present the details of a challenging episode in care. In this podcast we hear how they can provide victims of adverse healthcare incidents with the comfort they seek.


Professor Rick Iedema (Director Centre for Team-Based Practice & Learning in Health Care, King’s College London)
Professor Simon Willcock FRACGP (Program Head of Primary Care and Wellbeing at Macquarie University; Clinical Program Head of Primary and Generalist Care, Wellbeing and Diagnostics at MQ Health)

Written and produced by Mic Cavazzini DPhil. Music licenced from Epidemic Sound includes ‘Floating Kite by Tellsonic, ‘April Snow’ by Gavin Luke and ‘Five Below’ by Torii Wolf. Music courtesy of Free Music Archive includes ‘Cherry Blossom’ by Daddy Scrabble, ‘January’ by Kai Engel and ‘Remember the Archer’ by Scott Holmes. Image licensed from Getty Images. Additional voiceovers by Michael Pooley.

Feedback on this episode was kindly provided by the following members of the Podcast Editorial Group; Loryn Einstein, Lisa Mounsey, Rhiannon Mellor, Nele Legge, Sern Wei Yeoh, Joseph Lee, Marion Leighton, Oliver Dillon, Ilana Ginges, Rosalynn Pszczola, Lucy Haggstrom, Paul Cooper, Atif Mohd Slim, Victoria Langton and Ellen Taylor. Thanks also to nurse and barrister Ngaire Watson for her perspective on how the medicolegal system is weighted in favour of the defence.


Australian Open Disclosure Framework - Better communication, a better way to care [ACSQHC 2013]
Implementing the Australian Open Disclosure Framework – resources
Open Disclosure Standard Review Report
[ACSQHC 2008]
Review: Implementation of the Australian Open Disclosure Framework
[ACSQHC 2020]

Patients’ and family members’ views on how clinicians enact and how they should enact incident disclosure: the “100 patient stories” qualitative study [BMJ]
Disclosure of adverse events: a data linkage study reporting patient experiences among Australian adults aged ≥45 years
[Aust Health Rev]
Legal aspects of open disclosure II: attitudes of health professionals — findings from a national survey
Prevalence, severity, and nature of preventable patient harm across medical care settings: systematic review and meta-analysis
[BMJ 2019]
The potential for inadvertent adverse consequences of open disclosure in Australia: when good intentions cause further harm
[Medicine, Science and the Law 2019]
Enacting open disclosure in the UK National Health Service: A qualitative exploration
[J Eval Clin Pract 2017]
Improving reconciliation following medical injury: a qualitative study of responses to patient safety incidents in New Zealand
[BMJ Qual Saf

Disclosure of Medical Error
[JAMA Professionalism podcast]
Patients’ Experiences With Institutional Responses to Medical Injury
[JAMA Learning podcast]
A conspiracy of silence
[Making Healthcare Safe]
Apology Subverted: The Commodification of Apology
[Yale Law Journal]
The potential for inadvertent adverse consequences of open disclosure in
Australia: when good intentions cause further harm
[Medicine, Science and the Law]
No Role for Apology
[Yale J Health Policy Law Ethics]


MIC CAVAZZINI:               Welcome to Pomegranate Health a podcast about the culture of medicine. I’m Mic Cavazzini, for the Royal Australasian College of Physicians. Way back in 1995, our healthcare workforce was a little rattled by the findings of the Quality in Australian Health Care Study. Based on an analysis of 14,000 admissions to 28 hospitals, the study suggested that over 16 percent of them were associated with an adverse medical incident that resulted in a longer stay in hospital or even disability. [AIHW data from as recently as 2017 would put the rate of adverse events per 100 separations at around 5.4 percent but may not be as exhaustive as the earlier study]

Over the years comparable health systems like New Zealand, the UK, Singapore and Denmark have reported medical injury rates around 10 or 12 percent. While the gap in these numbers has allowed professional negligence firms to make claims like , “Australia has one of the highest incidences of negligent clinical care in the developed World,” in truth it probably just comes down to reporting and coding differences.

A systematic review of 70 different studies up to 2019 indicated that about half of medical injury is preventable. We covered some of the reasons for medical error back in episodes 32 and 34. The cognitive heuristics that can mislead diagnostic reasoning, and the systems pressures on attention, communication and mental fitness that can make such errors more likely. Today’s story isn’t about minimising the occurrence of medical errors so much as dealing with the consequences of them. A few errors are very obvious, and some have fatal consequences. But as we’ll hear, often the injury is more veiled and it’s hard to pin the blame on one practitioner or one particular clinical decision. Despite the range of events that fall under the umbrella of medical error, the Australian and New Zealand health ministries have been encouraging practitioners to disclose the details of these events to victims since the early 2000s. 

There’s a lot of similarity between the guidance documents- but I’ll quote from the current Australian ones which begin by saying that disclosure of error is a patient right, “anchored in professional ethics, considered good clinical practice, and is part of the care continuum.” To paraphrase the five defining features of Open Disclosure; First, there must be “an apology or expression of regret, which should include the words ‘I am sorry’ or ‘we are sorry.’” Second there has to be “a factual explanation of what happened.” Third, you need to discuss “the potential consequences of the adverse event” and then explain what is being done “to manage the adverse event and prevent recurrence.” Finally, the victim of harm must be given an opportunity to relate their own experience.

There are other guidelines around how soon to disclose an error has occurred and how to ensure that such conversations take place in a safe environment for the victim. These principles were drawn from a series of interviews published as the Hundred Patients Project in the BMJ 2012. The chief investigator was Professor Rick Iedema.

RICK IEDEMA:    I’m Rick Iedema, I currently work as a Professor at King’s College, London, where I’m a director of the Centre for Team-Based Practice & Learning in Health Care, and I was previously a professor at UTS – University of Technology Sydney – where we ran most of our projects that were funded by the Australian Commission on Safety and Quality in Health Care to look at incident disclosure.

MIC CAVAZZINI:               Yeah. So, rather than speak to an individual victim of medical error for this story, I thought it would be more useful to draw on the interviews that you and your team conducted for that project, and from these, you came up with some best practice standards. So, let’s just start from the top with an overview of guidelines; how and when does one first break the news that a medical error has occurred?

RICK IEDEMA:    Right. Well, that’s a question that is only answerable by saying, “It depends.” Because it depends on the severity of the incident, it depends on the state of mind of the patient, the acute care that the patient may need in response to the harm that was done, and it may depend on the other clinicians that may have been involved that also need to be taken care of, particularly if they feel that they were implicated in what happened. So, sorry not to be more helpful in that regard, but it is an important thing to point out because very often, when people say, “The guideline is that we should disclose within 48-hours,” is not quite sensitive enough to the needs of families and patients in this regard; it may need to be sooner, it may need to be later.

MIC CAVAZZINI:               Let’s go to some of those interviews. Even as you’re trying to arrange meetings with patients – with victims – one theme was that they didn’t like being passed around from person to person and having to chase up answers themselves. One quote was, “It’s not right that I should have to ask them what’s happening to fix it; they should make it right and come to me and tell me what were the results.” Was that a common theme that you heard?

RICK IEDEMA:    Absolutely, yeah. Remember that when we were doing our work – this is now ten-odd years ago, and healthcare services were not quite yet so adept at producing investigative reports, and I think it may have improved now. But definitely, for patients to have to go to services and knock on their doors to say, “Please explain to me what happened,” is completely unacceptable for anyone. But you’d certainly expect that if you were treated by Doctor or Nurse X, that you would be able to get in touch with Doctor and Nurse X if there was a concern about what they had done for you, or to you, and there shouldn’t be a shirking of that responsibility.

MIC CAVAZZINI:               And you’ve pre-empted my next question here; when invited to an error disclosure meeting, victims typically wanted to meet with those people who were responsible for their care, not just a delegate. In fact, the daughter of an injured woman told you, “I really think the doctor in charge of my mum’s care should have been there,” or in another study you published, “I would prefer someone higher up would have been present and a copy of the report given to me.” How often does that occur; that just the junior doctor is sent along without the supervising – the senior clinician to take some of the responsibility?

RICK IEDEMA:    Well, I think as a rule people avoid that, and that the more senior clinician would come along, or even lead. Whoever was involved in your care should be there to talk to you about the unexpected outcome. That’s the first principle. And not necessarily to provide explanations or root causes, but just to engage with patients and families in their state, their present state of shock and hope that somehow this situation can be fixed for the better.

MIC CAVAZZINI:               There was a similar study to yours conducted in New Zealand – Aotearoa – by Professor Jennifer Moore from UNSW Faculty of Law. One victim interviewed by her described how the sincerity of the moment was spoiled when administrative staff rather than clinical staff got involved – and I quote, “What I didn’t appreciate was when the manager kept talking over; the whole conversation came across as fake. I wanted to hear what the doctor had to say in his own words.”

RICK IEDEMA:    This is the complexity and the huge interest of incident disclosure. Because incident disclosure is this kind of place where the legal, the insurance, i.e., the financial, the reputational, the emotional, health, where it all comes together in the one spot. So, for people to think that the disclosure conversation needs an administrator to work out what the insurance implications are of what happened, or a lawyer to work out what kind of the legal implications might be, or a manager to work out what the organisational response – yeah, all that makes sense. But what it misses, I suppose, is that when you talk to patients and families, it is, in the first instance, the relationship they have with their clinicians, “I want to talk to the person who cared for me – the midwives or the doctor, or the” – because most of the time, patients and families say that not because they want their scalp, but they want to reconnect and reassure themselves that these people are human, and that they will do better in future.

MIC CAVAZZINI:               This dynamic was addressed by Harvard physician Dr Lucian Leape, sometimes described as “the father of patient safety”. In a recent history for the journal “Making Healthcare Safe” he wrote; “As the person responsible for the patient’s care, the doctor in charge is the one to apologize, even if the error was made by a resident, a nurse, the pathologist, or someone else...The other person should accompany the physician if appropriate…The CEO or other high-ranking administrator should also be there to apologize for the failure of the hospital’s systems to prevent the injury.”

This question of responsibility in large and complex systems is a prickly one. Lucian Leape was also co-author of the landmark “To Err is Human” report from the year 2000. This recognised that a health system entirely free of human error was impossible but that improving patient safety required greater transparency and a healthier work environment for practitioners. In the same vein, British psychology Professor James Reason coined the Swiss Cheese model of accident causation. While each slice of a system can act as a safety barrier, if you line up the holes just right an error can slip all the way through. Maybe an update to the medical record clashed with old computing habits and led to someone misreading a medication dosage. And then say there were new staff on, so handovers weren’t as efficient and the mistake wasn’t picked up by anyone else.

For a person who has just become victim to an adverse incident like this, it can be hard to fathom that there are so many potential weaknesses in the healthcare system. And in an early piece for the BMJ James Reason wrote “Blaming individuals is emotionally more satisfying than targeting institutions. People are viewed as free agents capable of choosing between safe and unsafe modes of behaviour. If something goes wrong, it seems obvious that an individual (or group of individuals) must have been responsible.”

How do you explain systems errors without sounding too handwavy or appearing to deflect accountability? And how do you convey authenticity and regret when there might not be one individual to take the blame? According to UPenn Professor of Surgery Stephen Raper disclosure laws that mandate an apology exacerbate this contradiction. In the essay "No Role for Apology" he argued that disclosure laws “may require individual physicians to apologize for the actions of a complex healthcare delivery system over which physicians have little authority or control, rendering the apologies contrived and insincere.” Stephen Raper thinks that health practitioners should of course have to to disclose errors but without the “moral hazard” of having to apologise.

I’m not sure. While it's true that doctors might not be able to promise that high-level stuff like resourcing of hospitals will change, I still think victims are moved to hear that someone has recognised where the gaps in care were, and taken some ownership for trying to fix them. “We’re sorry we let you down. We know that our care wasn’t up to scratch but this is what we’re doing to make sure it doesn’t happen again.” As Rick Iedema says, it’s not about unloading on the victim an exhaustive root-cause analysis of the incident.

RICK IEDEMA:    Well, that’s an important question; whether people – patients and families have an appetite for or demand critical information – exhaustive information about what happened. The funny thing is that it seems, from the interviews that I’ve done and the literature that I’ve read, that patients and families are less interested in knowing everything when relationships with their clinicians are good because they understand that these people are people; they’re human. When relations are not good and when they feel ignored, or they feel that there was something in their care that did not really respect their dignity, that kind of accumulates, they bank that.

And then when something goes wrong, that bank suddenly becomes currency for them to say “You owe us this, that and the other,” and very often “You owe us this, that and the other,” become demands that are in the first instance, impossible to answer because the clinicians don’t have full information about what they do in health care because they are not given the opportunity to reflect on what they do in the way that rugby players are; they can replay the match and say, “Oh my God, I shouldn’t have gone left, I should have gone right.” Clinicians don’t have that; they’re constantly busy doing what they’re doing, so when it comes to having to explain what care is, they’ve got very little to say.

MIC CAVAZZINI:               In a podcast for JAMA Professionalism one of the speakers on that podcast is Canadian Wendy Levinson who says to avoid using jargon that distances you from the incident. If you mean to say “we made a mistake,” don’t hide that in a passive construction like “there occurred an unfortunate adverse event.”

RICK IEDEMA:    Yeah, talking about Wendy Levinson– I mean, I think she’s got a linguistic background – and the language that we use in these situations is so absolutely critical. When you say, “I’m sorry that you feel that way,” or, “I’m sorry for what happened,” patients and families may feel that you’re not taking direct responsibility for the act or the action. Put yourself in the shoes of someone who might have experienced that, you’re sitting there thinking, “This is not telling me anything whatsoever, and it’s also not telling me anything about where this service is now going to go with fixing these kinds of issues.”

MIC CAVAZZINI:               One good quote from that New Zealand paper – which I should add was published in 2017 in BMJ Quality & Safety – one patient said that they would never return to the same hospital simply because of the crap apology that they received, that went along the lines of “we’re sorry you felt our care was disappointing.” That sounds a bit like those hollow scripted apologies we hear from celebrities and politicians. Another respondent in that study had the opposite response. They said, “I could see in the doctor’s eyes that he was genuinely remorseful about the loss of my baby; that he really meant it when he apologise. I went to the meeting devastated; I came out feeling I could move on. And I eventually had another child, and she was delivered at the same hospital.”

RICK IEDEMA:    And patients will forgive people a lot if they know that they care; if they feel that they are really affected by the situation – that’s true. There’s not a linear relationship between degree of harm and people being sued, I mean, that was what Charles Vincent was talking about in 1994 – a long time ago now – and that’s still true.

MIC CAVAZZINI:               One point they made in that JAMA podcast as well—you need to be prepared in advance as to what you’ll say, and there do exist in some institutions what are known as ‘disclosure coaches.’ And while that might sound cynical, it could just be someone who’s been through the process themselves, and can guide you as to what to expect to feel and be challenged with. You know, it will be very emotional for you as well. It might not be easy to think of what to say in the spur of the moment, so if the victims are vexatious, that’s not the moment for you to defend yourself, or interject and say, “No, that’s actually not what happened, and the clinically relevant information is this.”

RICK IEDEMA:    Exactly. And not to be spoken over. Not to be corrected, however misguided they might be in the first instance. And people have referred to that using a term from therapy called active listening, where you sit on your hands, and you just let people speak so that patients’ families can come away with the feeling that, “They’ve heard what our experiences were about; they’ve heard what our interpretations of what happened were about.” So, we come to a shared narrative about what happened. Their anger; active listening extends as far as allowing patients and families to vent, and that is a very difficult skill to be able to do that as a clinician who’s sitting there with all this stuff going on about, “My God, was I wrong? Was I guilty—to blame, perhaps?” And then to deal with people who are really, at times, very angry and excited, and wanting people to show humility; and that is a difficult thing to do in these kind of situations where your professional reputation is at stake.

MIC CAVAZZINI:               It's important to remember that there’s an imbalance of information and agency that can put victims of medical error on guard.  They might not even know which health professionals were present at the time of the incident. One woman interviewed for the Hundred Patients project was shocked that the hospital wouldn’t release the records of her deceased father. Another described attending a very straight-laced disclosure meeting at the hospital like “going to the headmaster’s office.”

Unreserved humility in these moments can go a long way to smooth out these perceptions of paternalism. Victims should be given the opportunity to bring a support person along, and from Jennifer Moore’s experience even if that is a lawyer it doesn’t mean the conflict will escalate. She adds that simple gestures can mean a lot to victims. For example, providing prompt information about trauma support or funeral services if necessary; even parking vouchers or meal tickets for those extra visits to the hospital; or an open and unconditional offer like “How can we help you?”

While the open disclosure standards have been discussed for almost two decades, there’s still worryingly little awareness or uptake of them. In a 2010 study published in the MJA, Rick Iedema and David Studdert surveyed 51 medical practitioners identified as leaders in open disclosure practice. Forty-five of them rated medicolegal fears as a barrier to greater transparency with victims and almost as many felt they hadn’t received adequate training.

Like the US, Australia has a tort-based compensation system, which means that a victim has to sue a healthcare institution or practitioner.
As New York physician Danielle Ofri has written in the journal Health Affairs, admitting that healthcare has gone wrong to otherwise naive patients feels “tantamount to handing your head to a lawyer on a surgical tray.”

In order to encourage greater transparency from practitioners, all Australian states and territories have laws that protect expressions of regret from being used as ammunition in a legal suit. Take, for example, this abbreviated version of Section 69 of NSW’s 2002 Civil Liability Act which reads; “An apology does not constitute an express or implied admission of fault or liability by the person… Evidence of an apology… in connection with any matter alleged to have been caused by the person is not admissible in any civil proceedings as evidence of default of liability.” 

About half of the practitioners surveyed by Studdert and Iedema didn’t know about these laws and even more of them didn’t think they’d give health professionals much confidence about apologising for mistakes. A survey of health executives published last year for the ACSQH suggested that uptake of the Open Disclosure Framework had markedly improved. Most were confident that training of staff and obligations to victims were up to scratch.

But a 2019 paper from the patient perspective was much less flattering. That was co-directed by Professor Merrilyn Walton from The University of Sydney and Rick Iedema. The research team randomly identified patients via the Sax Institute registry and linked data from hospital admissions. 7600 patients were surveyed of which seven per cent said they’d been told that a medical error had occurred. Comparing this to the presumed incidence of adverse events of around 12 per cent, you suspect that a number of respondents had been victims of error without being informed of it.

Of the 133 patients who were told of an incident with severe outcomes only a quarter were invited to participate in a formal meeting, and that figure was even lower for more moderate events. The rest of the patients received nothing more than a bedside meeting or a phone call, and nurses were twice as likely as medical practitioners to be the bearers of bad news. Professor Iedema told me that where injury is negligible and relations are good, a spontaneous disclosure like that may sometimes be appropriate. But as a rule, they don’t really give victims a chance to prepare themselves and line up questions for their carers. As expressed in the article; “Informal open disclosure… may fulfil an ethical duty to disclose harm, but is less transparent and may leave patients with incomplete information about their well being and future care.” To understand why best practice for disclosure hasn’t become more bedded down over the years I met with Professor Simon Willcock.

SIMON WILLCOCK:          My name is Simon Willcock, I’m Professor of General Practice, currently program head of Primary Care and Wellbeing at Macquarie University. And also spent fourteen years on the board of the Avant Group of companies, and they include the largest medical indemnity insurer in Australia.

MIC CAVAZZINI:               The open disclosure movement, in Australia has really come a bit more than a decade ago. Why do you think there hasn’t there been more uptake of the formal guidelines?

SIMON WILLCOCK:          Because I think they oversimplify what's a really complex phenomenon in terms of communication and they’re just not contextual enough. The whole idea of context has dropped out of the way we utilize evidence-based medicine. In the original descriptions of evidence-based practice by Dave Sackett and Gordon Guyatt from McMaster University, it's talking all about the available evidence that's used in the appropriate context for the patient and incorporating the wisdom and experience of the clinician.

MIC CAVAZZINI:               Well, I'm sort of probing at more—has there been enough education? Is there cultural resistance still?

SIMON WILLCOCK:          No, I don't think so. I think the moment you tell doctors—not just talking about GPs but all doctors—that they have to do something but you don't convince them that there's a good reason to do it, your uptake will be will be affected. Now, I think the tension in open disclosure, and the way we talk about it has not yet been fully reconciled, in terms of what are the implications for the doctor. That said, I don't think there would be many practitioners at all would object to the whole construct of open disclosure. I think the nature of us as medical practitioners, as I've said before, we're altruistic, we're honest, means that we'd all say yes, of course. But I think we have to look at the more sophisticated discussion of what does that actually mean? What are the risks for the doctor and not just medical legal risks, in fact, a lot of them are those sort of self-image risks and self-health risks, what we call the ‘second victim’.

MIC CAVAZZINI:               There's a rumour or a sense that hospitals and insurers maybe advise or have advised in the past they're members to apologize without admitting anything.

SIMON WILLCOCK:          Oh, absolutely. And even though I'm a GP, I have always either been employed with or had an affiliation with the hospital. Certainly, I've been aware of a number of cases where, where practitioners haven't felt that the true spirit of open disclosure has been applied. And again, that any whiff of hypocrisy like that completely undermines people's sort of sense of safety, in terms of actually being honest.   

MIC CAVAZZINI:               In fact I came across New South Wales Health’s open disclosure guidelines prior to 2014 that gave this example of an apology. “The nurse knew your husband John was allergic to penicillin, but she gave him the injection by mistake that caused him to have an anaphylactic reaction, from which he could not be resuscitated. We’re very sorry about the incident.” That was presented as an example of a bad apology because it admits that “the hospital or staff member breached their duty of care to the patient, which led to the patient suffering harm or injury. An apology does not indicate that the incident could have been avoided.” That's pretty sounds pretty defensive, doesn't it?

SIMON WILLCOCK: Hugely and dishonest—there was clear error there. But you know, you can still be empathic to the practitioner. But even the wording, and you're quite correct in that, I think creates in the practitioner a sense of hypocrisy, and certainly would in the patient.

MIC CAVAZZINI:               When my reviewers heard the podcast, it was clear that a lot of this stuff wasn't common knowledge. One of them wanted to know what exactly warrants disclosure. They said, roughly quote, “that working in neonatal intensive care, we come across little things that go wrong all the time, and I never know at what point do you let parents know. If nothing has happened, or it's a near miss, do we have to tell them? Shame on me, but in a way, I'm weighing up the value of honesty versus damaging their trust?” Is there a clear threshold of what…

SIMON WILLCOCK:          Again, it's not simple. Some errors are errors. So the instance of the practitioner giving the patient penicillin when they knew they're allergic to it, that's an error—we don't have to argue about that. And that's why those very concrete examples are used. But examples like that are not at all nuanced, and very, sort of, single factors. Those are not the difficult ones in life. Often it's not a case of an error. It's a case of, “I wish I had done this sooner.” One of the things that happens in health is that patients get better and worse over time. And so to reflect back and say, “Six hours ago, if I knew this was going to happen, I would have done this,” that's not an error, that's just what happens in life.

And, again, communication really is what you need there. I often say to the young doctors to do their safety netting, if you've heard of that term of safety netting. So if I've seen a sick child, as we do frequently here in general practice, and it's an anxious parent—I had one only a couple of days ago with a child was in the emergency department over the weekend for what may have been just a rigor associated with a viral illness, but may have been a febrile convulsion. The Children's Hospital sensibly checked, everything was okay and sent the child home and I saw the mother, two days later, having already read the discharge summary; an anxious mother and a child who still wasn't completely well. So as the child is going out, and I made myself very happy that there wasn't anything seriously wrong, I said to the mother kids get better quickly, but they get worse quickly. I don't mind if you come back in two hours or contact me in two hours. That's very different to me saying look, you're worrying too much I can assure you there is nothing wrong with this child. Both statements would have been accurate at the time. One of them would have left me very exposed, if as occasionally happens, the child become seriously ill a few hours later. The other one, the sent the message of, “I care about your child, I care about your anxiety about your child, things may change. I may have made the wrong judgment at this time.”

MIC CAVAZZINI:               I can't promise that I've covered 100 per cent.

SIMON WILLCOCK:          Yeah. But I'm saying to the parent, I've got a safety net here for us both. My wife is also a clinician, and she's far better than I am at actually understanding what patients want, she has a great way of interacting with people. And as she'll say, “if I'm dealing with a frail elderly lady in her eighties, she won't want the same sort of information that the retired engineer wants.” But that then comes down to establishing the nature of your relationship. It's a conceit for any clinician to assume they can decide what a patient wants to know, or needs to know or is capable of understanding, without having taken the time to actually form a relationship with that person.

MIC CAVAZZINI:               Like the NSW guidelines I quoted, the national ones state; “An apology or expression of regret should include the words ‘I am sorry’ or ‘we are sorry’, but must not contain speculative statements [or] admission of liability.” This stems from the fact that the state and territory civil liability laws protect expressions of regret from use in legal proceedings, but not admissions of fault.

David Studdert, who I mentioned earlier, is a Professor of Health Law formerly at the University of Melbourne and now at Stanford who has examined Australian legislation in detail. In a 2010 article for the MJA he wrote that since apology laws were not developed for the medicolegal context, they’re not entirely fit for purpose. There are differences between jurisdictions as to whether an apology is privileged from all civil proceedings, only those surrounding tort or personal injury claims, or even from medical board hearings.

And note that it’s only the apology which is protected by these laws, while other statements about the incident do remain admissible. But then there’s a weird disconnect in the fact that evidence compiled for quality assurance purposes is typically protected from other uses by the doctrine of ‘qualified privilege’. Professor Studdert and his co-author asked, “when [quality assurance] findings become available, good open disclosure practice may dictate that some or all of the findings be shared with affected patients and their families. To what extent, then, does the privileging of information in the [quality assurance] setting radiate out to affect use of the information in the open disclosure setting?” In fact, in all jurisdictions except Western Australia, the privilege around quality assurance findings “falls away” once the information leaves that setting. The authors called for stronger and more consistent protections for open disclosure to encourage greater adoption of guidelines by practitioners. Though they conceded that there hadn’t been any spike in medical negligence litigation or health care complaints since apology laws had been implemented in Australia.

Victims of medical injury have a very high bar just to have a case heard. Then the prosecution has to convince the court that the medical error occurred due to negligence, or knowing gaps in the standard of care. Three different legal experts cited in the Australian Framework’s ‘Guide to apologising’ don’t believe that admissions of fault per se would add weight to a plaintiff’s argument, based on the little case law that exists around this. Importantly; “An admission of fault (whether contained within an apology or not) is, in the eyes of the law, merely the defendant’s opinion. Whether this opinion is correct must be established by the facts, not by what is said, and generally the law does not accept these opinions as determinative of legal outcomes. Even in criminal law, a voluntary confession does not automatically create guilt.”

In light of this, bioethicist Stuart McLellan has argued that apology laws don’t need strengthening at all; “Although laws that…protect truthful expressions of responsibility are unnecessary, they operate on ethically shaky grounds and risk diminishing the value of apologies and fuelling public cynicism towards the medical profession.” It’s hard not to be cynical about suggestions in our national framework that “Apology may… include an acknowledgment of responsibility, which is not an admission of liability.” To me that sounds a bit like Humpty Dumpty telling Alice, “When I use a word, it means just whatever I want it to mean- neither more, nor less.”

This problem was addressed at length in an essay from two decades ago titled “the Commodification of Apology". Over his many years as a trial lawyer, Lee Taft observed a number of clients who’d won substantial payouts or settlements but who still harboured lingering resentment that they hadn’t received an apology. After scouring the sociological literature for an explanation he concluded that an apology is, by definition, performative; the offender displays their recognition that an injustice has taken place and generates in the victim a new agency or authority to grant forgiveness; “Apologetic discourse is dyadic, a moral exchange between the…offender and offended. For an apology to be authentic…there must be an unequivocal expression of sorrow and an admission of wrongdoing.”

This may be humiliating and even expose the offender to some risk, but in Lee Taft’s view, for an apology to have weight there has to be something at stake for the person giving it. He was critical of American statutes that enable generic expressions of regret but discourage specific admissions of responsibility; “When the performer of apology is protected from the consequences of the performance through carefully crafted statements and legislative directives, the moral thrust of apology is lost.” That ritual is even more corrupted if an apology is offered in the hope of avoiding litigation or in exchange for an out-of-court settlement. I’m not suggesting that anyone listening would treat apologies in such a transactional way, I’m just highlighting how legal constructions can sully what otherwise might be a profound thread between two people. Here’s Professor Rick Iedema again on this theme.

RICK IEDEMA:    As you correctly pointed out, distance now being created between people and that is the source of the very problem. We’ve had situations where people had lost their baby—the midwives weren’t allowed to talk to the family—they wanted to talk to the family but weren’t allowed to do that by the organisation because of insurance risks that they felt.

               There were a couple of responses in the Hundred Patients’ interviews that captured this. One person said, “What I said to them – the staff – was that the entire investigation has totally missed the point of my concerns, and instead of addressing them, they’ve tried to cover the hospital’s position from a legal viewpoint, and that was the last thing on my mind.” The daughter of another injured patient said, “We don’t want anything, we never have. How can you become so caught up with rhetoric and paperwork, and policy that you can’t just say to a family, ‘We did the wrong thing and we’re sorry.’”

RICK IEDEMA:    Yeah the apology is a critical act. Being able to hear what patients and families are expecting from you know that you are at the receiving end. Or you are in a kind of position where you need to show humility to their expectations and hear what it is that they want, even though they might not be able to articulate that very well. And that authenticity is very difficult to attain, particularly if you have concentrated in your training mostly on technical skills. And what people do in open disclosure training is to sensitise trainees into what that authenticity might look and feel like.

MIC CAVAZZINI:               According to the legal expert you cite, those civil liability laws are pretty bombproof, let’s say, but this hasn’t greatly changed the culture around disclosure. There is this paranoia that the information might even prompt a victim to sue where they wouldn’t have done so if they didn’t have the information. In fact, there was a 2007 article in the journal of Health Affairs that made this point – written by law expert, David Studdert with Professor Michelle Mello and bestselling surgeon, Atule Gawande – is there any evidence that this has been the case in Australia that open disclosure has prompted more suits?

RICK IEDEMA:    I think it was more a kind of principle than statistics-based. But they might have had a basis for saying that at the time because there was no other way of getting the service to open up. Studdert and colleagues were taken to task over this article by the Australian Commission on Safety and Quality in Health Care because the commission’s intent was to reassure clinicians that it was the right thing to do; kind of the more aspirational intent on the part of the clinician to say, “Look, we need to open up to patients and families about the things that do not go as expected, and even if they want to take us to court, they should be allowed to do so.”

MIC CAVAZZINI:               Going back to Doctor Lucian Leape, in the May edition of the journal – Making Healthcare Safe, he says, “The very word used to describe these conversations: disclosure, tells much about the problem; it clearly implies ownership and choice. Information about the details of what happened and possible wrongdoing is deemed to belong to the physician. The high-flown rhetoric about honesty, honour and professionalism reinforce this concept. Not surprisingly, the idea is totally rejected by the patient advocate groups who reasonably ask, ‘Whose body is it anyway?’” So, it sort of goes to what you were just saying.

RICK IEDEMA:    Yeah. What he adds though is the whole of rhetoric of honesty and openness, why does that kick in only at disclosure? Because if you really mean it, then you would not treat a patient without pointing out the kind of risks, the limitations, the shortcomings. You know, “Look, the success rate of the consultant has been X, Y and Z. The nurses you’ll be working with are 30 percent agency, so they do not really quite know the situation as well as the more regular nurses.” And so, don’t talk about honesty and openness kind of in vague terms…

               Right. And that gets to the conversation about informed consent; if it truly is informed, if it truly is participatory, people are taking on the risks themselves or sharing those risks with their clinicians.

RICK IEDEMA:    Absolutely. It’s incredibly important for how the whole situation unfolds from there.

MIC CAVAZZINI:               As I was putting together this story, I came to experience its themes more directly than I ever expected. My father, who lives on a farming property in regional NSW had spent several days vomiting, with abdominal pain that came and went. He went into the Base Hospital an hour away, but after examination he was sent home with some endone.  The next day, a Sunday, there was more vomiting and fever too. Though he wanted to ride it out, my mum put her foot down and got him to the ED just before dark. A couple of hours later he was being intubated for bilateral aspiration pneumonia and wheeled into theatre to release an incarcerated Spigelian hernia. This was followed by a midnight helicopter flight to an ICU 150km away.

The next couple of days were nerve-wracking. No one could visit because of COVID precautions at the hospital. The ICU staff would fill us in when we could get them on the phone, but dad’s condition went up and down several times. When his tube came out I sobbed with relief. But also at the thought of him waking up alone and bewildered in such a strange place. After a week in ICU he spent another week on the post-surgical ward where I was permitted to see him briefly in the lobby—a 10 minute visit for a five hour drive. He didn’t show any joy at seeing me or my mum- just stood awkwardly in his hospital gown. Over an ill-fitted mask his eyes had that thousand-yard stare. I’d never seen him so spooked before but by the third week his spirits were recovering at a private rehab hospital, and his conditioning too. 

My family wondered why an abdominal scan hadn’t been ordered on dad’s first visit to the ED, and his GP was even pretty furious about this. But I’ve interviewed enough physicians to imagine how it might have passed. At 73 years of age, Dad’s a bit of a stoic and probably hadn’t complained too much on presentation because he’s had bowel pain before. The only thing he could really remember about the examination was that it was hard to understand the doctor through the face masks. I guessed that COVID pressures might also explain why he wasn’t kept for observation and I decided to contact the hospital, just to find out whether they had done a quality and safety assessment of the case.

I very promptly received a call from the hospital’s Director of Emergency. He began by saying, “You’re dad’s a real gentleman. He probably won’t remember, but I was the one who intubated him.” Until this conversation, I hadn’t realised it was actually the signs of sepsis that had bumped my father to the top of the list. Only when the doctor saw vomit and bile in the trachea was a bowel obstruction back on the agenda, and he admitted to me his worry that my dad might not make it out of the ICU.

Over 45 minutes this doctor walked me through every step of the two admissions and allowed me to query every possible confound. The Junior Medical Officer who’d first seen my father had plenty of experience from two terms in emergency. As I’d suspected, dad told him the pain had dulled on the drive over, and palpation didn’t show any distension or acute pain. What tenderness there was my dad put down to something vague he’d already had investigated without conclusion six months prior. All this was reported to the senior medic, who didn’t examine my father directly, but had seen him walking comfortably enough around the ED. Even though the department would normally have a very low threshold for ordering an abdominal CT in a patient of that age, it just didn’t seem warranted on this occasion, and they agreed to send him home.

I get it. I’ve done podcasts on how generalised abdominal symptoms are and how unlikely a life-threatening cause might be and I’ve reported on the Choosing Wisely principles. But I’ve never faced so starkly that conundrum of pitting medical advice based on statistical probabilities, against a personal response that would insist every precaution be taken. The ED Director assured me that if they’d had any suspicion they would have ordered the scan. There had been no systems pressure in the availability of observation beds either—the only curve ball that COVID had thrown in the mix was the fact that this small regional department intubated six patients that day. They just didn’t have enough ICU staff to monitor them all, hence the helicopter transfer.

The ED team had, of course, reviewed my dad’s case, as you would any readmission after such a short period. But the director told me, somewhat regretfully, that they weren’t sure that they’d do anything differently were such a constellation of symptoms and history to present once again. I didn’t feel I could argue with that. In the middle of a terribly unlucky scenario, I do feel like my dad ended up getting the best possible care. I thanked the doctor for saving my dad’s life, and even told him to make sure the JMO wasn’t double guessing himself too much.

I hope my response would have been just as sanguine had events turned out for the worse. And I hope it doesn’t take making podcasts for a medical college to appreciate the weight of responsibility and uncertainty that acute care doctors in particular face every day. I will say that the ED Director’s total candidness won my trust. Our conversation didn’t just tick off the professional standards for disclosure, I could hear that that his hopes and fears for my father had been the same as mine.

In the next episode we’ll talk about the strain that doctors themselves feel when they’ve been involved in an adverse healthcare incident. And in the final part we’ll look at the advantages of New Zealand’s legal framework for victims and practitioners. For now I want to thank Rick Iedema and Simon Willcock for sharing their insight on this episode of Pomegranate Health. Thanks also to Michael Pooley for lending his voice to the citations, the podcast reviewers who advised me, and the composers responsible for the music you’ve heard. They’re all credited in full at racp.edu.au/podcast. At our website I’ve also linked heaps of supporting materials for clinicians and health service organisations wanting to better implement open disclosure into their practice. I should say that what you’ve hear today does not constitute legal advice, and may not represent the views of the Royal Australasian College of Physicians. I’m Mic Cavazzini. All the best.


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18 May 2024
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