BOISE – Feel better after hearing an apology? Most people do.
With that in mind, the Idaho Medical Association wants to change the law to let doctors and other health care providers apologize to patients when something goes wrong – without the risk of seeing that apology used against them later in court in a malpractice case.
“Doctors have for many, many years been schooled to defend and deny,” said Ken McClure, a lobbyist for the association.
“That’s probably not in the doctor’s best interest, and it’s most certainly not in the patient’s best interest,” McClure told the House Judiciary, Rules and Administration Committee last Friday. “We are trying to use the law in a way that will allow physicians and patients to speak to one another more freely.”
The bill would change Idaho code to provide that “expressions of apology, condolence and sympathy made by health care professionals shall be inadmissible in certain circumstances.” Expressions of fault would still be admissible in court.
Supporters of the bill say patients who have heard an apology might be less inclined to sue. Some medical schools and hospitals now promote the idea of apologizing to patients after treatment results in an unwanted outcome.
“This is the start of the healing process,” said Bob Seehusen, a spokesman for the Idaho Medical Association. “It’s not going to stop lawsuits, but it may minimize some of those that can be dealt with by explanation and conversation and communication.”
In the past few years, almost two dozen states have adopted similar laws, said McClure. Idaho’s legislation also includes the word “explanation” along with the expressions of sympathy, condolence, and compassion that a health care provider could safely utter under the proposed law. Barbara Jorden, a lobbyist for the Idaho Trial Lawyers’ Association, said her group supports the bill – except for that one word. She said doctors’ explanations should be admissible in court.
“If the doctor explains what happened in the unintended outcome, that information should be included if the case should actually go forward,” Jorden said. “We don’t want the medical professional to exclude the explanation; we just want that to be useful in court if it gets to that point.”
But lawmakers voted Friday to send the bill as it was to the full House for consideration.
Rep. Bob Ring, a Caldwell Republican who is a retired physician, told the panel about a patient who underwent an emergency hysterectomy about 20 years ago while under his care. He explained to her what happened.
“Fortunately she was very thankful I saved her life. Her husband was as well; they didn’t sue,” Ring said. “Often an explanation is very appreciated by the patient.”
Becky Nelson, director of risk for a large group of Boise-area primary health providers, said her employer changed its policy about three and a half years ago and started apologizing for mistakes.
“I think patient satisfaction has gone through the roof,” Nelson said. “The providers are much happier now … the patients are so thankful.”
Plaintiffs in Idaho malpractice cases must find an expert witness – usually another doctor – who can testify that the care provided did not meet the local standard of care, McClure told the panel.
“You don’t prove a medical malpractice case by using the doctor’s statements,” he said. “They’re really not even very relevant to the case.”
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