Editorial

A Sorry Situation

Doing the right thing and apologizing to a patient for an adverse treatment outcome can, but shouldn’t, increase a dentist’s liability.

Dr. Doright’s heart pounded. He felt a sickening, empty feeling in the pit of his stomach as he read the oral surgeon’s recent treatment report regarding his next scheduled patient. He suddenly realized he had mistakenly ordered, and the surgeon had completed, extraction of the wrong teeth. The loss of two critical abutment teeth in a partially edentulous arch now created a more complicated, expensive and compromised treatment plan. He swallowed hard, collected himself, entered the operatory, clinically confirmed the situation and apologetically said, “I’m genuinely sorry.”

He went on to explain what had happened, admitted his error, and advised the patient to file suit against him to have the dentist’s malpractice insurance carrier compensate the patient for the injury and added expenses. After careful consideration, the patient responded, “But, Doctor, I don’t want to sue you because then you couldn’t continue to be my dentist.”

All dentist apologies and admissions of fault to patients, regretfully, do not result in as fortunate an ending as in the above, actual case summary. The decision to apologize and admit fault remains controversial with many risk managers and attorneys. Typically, they advise dentists to “deny and defend” when things go wrong to avoid making a verbal mistake which the patient’s attorney could use against the dentist in court. Nevertheless, candid, open disclosure can reduce the risk of liability claims when a dentist knows when and how to say “I’m sorry” and practices in a state with apology law legislation that makes such statements inadmissible as evidence.

The Hardest Word

Elton John’s song “Sorry Seems to be the Hardest Word” aptly describes the quandary dentists face when we seek to explain and show sympathy for adverse treatment events to our patients. Ethics dictate transparency and honest disclosure. Risk management principles warn that apologies can backfire and create increased liability. It places dentists in a Catch-22 situation, where the apology we ethically want to deliver could increase our risk of a lawsuit. Dr. Doright offered his apology and admission of fault, as the facts attest, into a strong, mutually trusting dentist-patient relationship, an essential element to achieve an apology that both strengthens the therapeutic relationship and deters legal action. Here, the patient so valued their ongoing relationship over the prospect of a financial settlement that the patient declined the dentist’s invitation to file a slam-dunk lawsuit. Since the patient had no intent to sue Dr. Doright in the first place, it rendered moot whether the dentist simply apologized without admitting fault, or apologized and admitted fault, or whether state law would allow any of the statements to be used against Dr. Doright at a malpractice trial.

In the case of a weaker dentist-patient relationship, with minimal trust, and certainly after an angry patient has requested transfer of their records to another dentist or contacted an attorney or the State Board, apologies and admissions become ineffective, since the relationship is already beyond salvage. And it’s inadvisable in most states since they may alert the patient to an otherwise unknown event and prompt a lawsuit in which the statements will be admissible as evidence against the dentist.

Since most patients will not respond like Dr. Doright’s patient, dentists involved in a trusting dentist-patient relationship facing the task of disclosing to the patient the circumstances of an unexpected or adverse treatment outcome should understand the underlying reasons patients sue dentists, dentists’ ethical and legal duties of disclosure, and the state’s apology law to determine what to say and when to say it.

What to Do When Lightning Strikes

Patients sue dentists for four main reasons. First, to get information or answers regarding what happened and why. Second, to get back at the dentist out of anger for a violation of their trust and perceived lack of empathy. Third, to hold the dentist accountable and prevent future patient injuries and, finally, to get money—not usually the prime reason.[1]

A disclosure and explanation of an adverse event, an apology and plan to correct the problem can respond to these patient concerns and diffuse the patient’s desire to strike back legally. A timely acknowledgment of the circumstances opens a candid dialogue, enhances trust, and reduces patient anxiety and confusion. An apology expressing genuine remorse, regret and empathy will quell patient anger. A detailed explanation of what went wrong answers patient questions and provides evidence the dentist holds himself accountable and will prevent similar reoccurrences. Finally, a plan to correct and commit to ongoing care, possibly without additional fees, as a form of reparation allows space for problem solving.

In the event of an adverse patient outcome, dentists have four options. First, hide the error, avoid the patient and their questions, bill as usual and hope it goes away. Second, disclose only the legally minimum information to inform them of their current condition. Third, disclose the minimum, but with an apology, expressing regret and re-

morse, and no admission of fault. Fourth, disclose, apologize and admit fault, possibly with a financially acceptable corrective plan, such as a redo at no additional fee.

Can’t We Talk It Over?

The choice to hide our error and avoid the patient out of fear of being found out and punished violates our legal and ethical duties and could increase the risk of a suit and its settlement value. This coverup strategy violates our legal duty to inform the patient of the progress of treatment and their current condition. It also violates our ethical duties to communicate truthfully and without deception, autonomously involve the patient in treatment decisions in a meaningful way and refrain from harming the patient by correcting errors immediately to avoid further injury to the patient.

If and when the patient discovers the error and injury from a subsequent treating doctor, it increases patient anger, feelings of betrayal of trust, and the desire to file a claim to get all the information and hold their former dentist accountable. It will also increase the potential verdict or settlement value due to the judge or jury’s disapproval of the dentist’s failure to do the right thing. No doubt the coverup overshadows the deed.

The choice to apologize and/or to admit fault after informing the patient of their condition in a mutually trusting dentist-patient relationship depends on the state in which the dentist practices and, most importantly, the dentist’s training on how and when to apologize. Approximately 18 states, including Colorado and Arizona, offer a practitioner full protection for both an apology and admission of fault. The Colorado statute states, in part, “…in any civil action… all statements…expressing apology, fault, sympathy… made by a healthcare provider… which relates to the … pain, suffering, injury or death of the alleged victim… shall be inadmissible as evidence of an admission of liability.”[2]

Approximately 16 states, including Michigan, Pennsylvania and Maryland, offer a practitioner partial protection only for an apology, but not an admission. Approximately six states, including Florida, Texas and California, have general apology laws applicable in all “accidents” that, although there is limited case law on the topic, would probably offer dentists limited protection only for apologies. All remaining states, including New York, New Jersey and Illinois, currently have no apology statutes, thereby making all apologies or admissions of liability admissible as evidence.[3]

Apology laws can only reduce malpractice lawsuits against dentists if dentists receive risk management training in when and how to apologize. The training must include how to honestly appraise trust in the dentist-patient relationship, why patients sue dentists, the minimum legal disclosure requirement, the existence or type of state apology law and how apologies must differ in each jurisdiction. If no state apology law exists, the dentist should probably avoid all statements of regret, remorse or apology and, certainly, of admission.

If state law protects apologies, but not admissions, then dentists must take great care in their choice of words because, often, no bright line exists between saying you are sorry and admitting you are wrong or at fault. In these partial apology law states, dentists must learn to say “I am sorry” for the patient’s inconvenience or dissatisfaction, but never admit, state or imply regret for the delivery of substandard care. Forcing dentists to walk this tightrope without knowing their state apology law and how to navigate it, puts these dentists at risk for sounding evasive and insincere and could enable a lawsuit against them rather than prevent it.

Finally, if state law protects both apologies and admissions, and the dentist understands how and when to deliver them within the protection of the law, then the statements can both strengthen the dentist-patient relationship and reduce the risk of a malpractice lawsuit.

A Sad Sad Situation

It’s sad and, thankfully, rare in our legal system that following ethical principles and doing the right thing can increase your liability. Dental societies in states without protections for apologies and admissions need to lobby for full-protection apology laws. Dental education, along with malpractice insurance carriers and organized dentistry, must work together to train practitioners how and when to say we are sorry to our patients in light of our individual state law. Importantly, dentists must consult with our malpractice carrier and attorney on a case-by-case basis before apologizing or admitting fault. Together, we need to protect, not punish, doing the right thing.

This editorial is intended to provide general risk management information only. Legal advice should be obtained from qualified counsel to address specific facts and circumstances, to ensure compliance with applicable laws and standards of care.

REFERENCES

1. Hicks J, McCray C. When and Where to Say “I’m Sorry.” Claims and Litigation Management Website February 16, 2021. https://www.theclm.org/Magazine/articles/apology-laws-medical-malpractice/2172.

2. C.R.S.A. #13-25-135.

3. Hicks J, McCray C. When and Where to Say “I’m Sorry.” Claims and Litigation Management Website February 16, 2021. https://www.theclm.org/Magazine/articles/apology-laws-medical-malpractice/2172.