Medical Apology Laws Are An Excuse To Avoid Doctors’ Ethical And Legal Duties To Patients

The Philadelphia Inquirer today profiles an issue of disturbing importance to doctors and malpractice insurance companies: the legal right to lie to patients with impunity.

Of course, they don’t describe it that way, they describe it like this:

Many doctors feel that an apology – accepting responsibility for errors, telling what went wrong – is a dramatic advance and the right thing to do since doctors have long been loath to admit mistakes.

But they say the trend will continue only if doctors know they can speak openly, without fear of being bludgeoned in a lawsuit.

“Isn’t that a little like testifying against yourself?” asked Jim Redmond, head of legislative affairs for the Hospital Association of Pennsylvania.

Let’s get one thing straight, Jim. I’m assuming you’re referring to the right against self-incrimination by mentioning “testifying against yourself.” That right protects criminal defendants from being punished for refusing to confess to their crimes. Outside of that narrow circumstance, people ‘testify against themselves’ all the time.

If you run a red light, hit someone, then jump out of your car and exclaim, “I’m so sorry, I didn’t see the light change, are you okay?” that can be used against you in court. If you slip and fall on an olive oil spill at the grocery store and the manager comes out and says, “We’re so sorry, somebody should have cleaned that up,” that can be used against them in court.

It’s pretty simple: with a few exceptions relating to constitutional rights, what people say outside of court matters inside court. Why? Because what people say matters in real life outside the courthouse. It matters that you admitted not seeing the light and the store manager admitted someone should be cleaning up the floor — do we want our courts to be nothing more than a collection of legal fictions with no relationship to the real world? Why should we pretend that someone didn’t say something they did?

It’s important that we all understand exactly what doctors, hospitals, and more importantly their insurance companies are demanding: they want a special exemption from a basic principle of law and evidence that’s applicable to everyone.

But there’s another, more insidious, issue underlying the “medical apology” lobbying. To see it, let’s dive into the facts of the case described by the Inquirer:

Destinee Lotoya Blake arrived in this world by cesarean section after doctors determined the umbilical cord was wrapped around her neck. At 29 weeks, she was small, weighing just 1 pound, 9 ounces. …

The newborn needed to be fed intravenously. Her doctor threaded a catheter no thicker than a human hair through her veins, intending it to stop where her biggest vein reached the heart. The nutritional fluid was so concentrated that it needed the largest possible vein and maximum amount of blood to dissolve safely into the bloodstream.

Her heart was the size of an adult thumb, and the catheter went a few millimeters too far, entering the heart. In the vein, the blood flow keeps the catheter away from the vessel wall. But inside the heart, blood doesn’t move as rapidly, and her catheter rested against a heart wall.

The fluid actually seeped through the wall, into the sac surrounding her heart. That sac began to fill with fluid – a teaspoonful, but enough to stop the heart.

A chest X-ray is always taken to confirm proper placement. But in Destinee’s case, the X-ray wasn’t read in time.

When processing the X-ray, the technician clicked on the wrong baby’s name, realized it, but when she clicked again on the correct name, a drop-down screen that normally auto-populates with data had to be filled in manually, which the technician wasn’t accustomed to doing.

She confused the birth date with the film date, since they were close together. As a result the X-ray wasn’t seen in a timely manner or in context.

That is blatant, unambiguous malpractice. When my twins were in the NICU, they, too, received intravenous feeding (“Total Parenteral Nutrition”), and indeed the technicians took dozens of x-rays every time the catheter was placed anywhere near the heart. It’s one of the more dangerous moments for the baby; everyone from the technicians to the nurses to the doctors knows that, and they’re supposed to be on guard.

An aside: in the comments to the Inquirer story, a number of readers make arguments like “At 29 weeks and 1.5 pounds, this baby should have never lived as long as it did. Hard to say but it’s true.” Rubbish. Destinee was small for gestational age, and she had a nuchal cord, but the odds were still in her favor. My twins were 26 weeks. One was 1.625 pounds and had a nuchal cord. Years later, they’re both alive and doing well. NIH has a tool for predicting outcomes in extremely premature children, and it tops out at 25 weeks because the odds of survival rise so rapidly after that.

In addition to the malpractice claim, there’s likely a ‘corporate negligence‘ claim against the hospital (see Thompson v. Nason Hosp., 591 A. 2d 703 (Pa. 1991)), too, for having inadequate procedures to confirm the x-ray was timely reviewed. Abington Memorial Hospital should have had adequate policies, procedures, and electronic health records systems to ensure that, even if the technician did make that type of mistake, the problem would be caught in time. Healthcare researchers often describe medical errors in terms of “the Swiss Cheese Model:”

The ideal system is analogous to a stack of slices of Swiss cheese. Consider the holes to be opportunities for a process to fail, and each of the slices as “defensive layers” in the process. An error may allow a problem to pass through a hole in one layer, but in the next layer the holes are in different places, and the problem should be caught.

In many ways, Destinee’s death was due more to the lack of enough “layers of cheese” than to the technician’s mistake. Humans are mortal. They make mistakes, have errors in judgment, and mix up dates and numbers. At a hospital is supposed to ensure that these mistakes don’t lead to tragic outcomes by implementing many “layers of cheese,” which Abington apparently failed to do here.

I write all of that so everyone reading knows that this case doesn’t involve much debate about the standard to which doctors are held. It was malpractice, pure and simple. 

Afterwards, the doctors invited the parents in for a meeting:

Within a week, John J. Kelly, Abington’s top doctor, invited Destinee’s parents into a conference room. He told them everything that happened, what had gone wrong. Others involved in Destinee’s care joined him. All expressed their sorrow.

Let’s take a moment to unpack that. I’ve color coded two sentences blue and another sentence green.

The blue sentences describe the doctors discussing with the parents for medical care delivered to their child and the medical cause of their child’s death, which in this instance was the treatment provided to their child.

The green sentence describes the doctors apologizing to the parents for what happened.

Make no mistake: the doctors are required to tell patients (and the parents of minor patients) what care was provided, what happened to the patient, and, if known, the cause of the patient’s condition. It’s the law. It’s basic medical ethics. The doctors were required to tell the patient the information in blue.

The green sentence is something different; it’s the doctors expressing regret for the outcome.

When supporters of “medical apology” laws talk about what they want, they talk only about the information in the green sentence, i.e. a doctor’s or hospital administrator’s personal preference to express regret to the patient. But look what Abington hospital tried to do in this case:

Nearly a year later, in February 2011, he and his wife, Erica Allen-Blake, both of Philadelphia, filed suit. The meeting with Kelly formed a fundamental part of the suit:

“At the meeting the defendants expressed regret over Destinee’s death and described the course of treatment provided to Destinee, and admitted the death was caused by the hospital.”

The suit went on about the meeting for eight paragraphs.

The hospital’s lawyers objected. They maintained in court papers that this meeting was confidential by law, and that nothing about this conversation could be used in court.

That’s right: they tried to keep the entire conversation out of court, even the blue parts they were ethically and legally bound to tell the child’s parents.

When it comes to the expressions of regret themselves, my view is similar to that of the lawyer for Destinee’s parents:

Trial lawyers disagree. They say doctors and hospitals either have the courage of their convictions – telling the truth, accepting the consequences – or they don’t.

“Sit around and sing ‘Kumbaya’ as long as nobody faces any consequences? And we’re supposed to be OK with that? Come on,” said Jonathan M. Cohen, the lawyer for Destinee’s parents.

Cohen characterized the medical community’s position as this: “We will tell you the truth, but only if it doesn’t hurt us.”

But we can’t forget there’s another principle at stake here: doctors, hospitals and their insurance companies want these laws not just to permit this expressions of regret, but to grant health care. A legal exemption that not only violates basic principles of law applicable to everyone, but contradicts the healthcare provider’s basic ethical and legal duties to tell patients what happened during their treatment.

Two bills on “medical apologies” are pending in the Pennsylvania General Assembly. If you don’t want to grant doctors a special exemption from their duty to tell you what happened in your treatment or the treatment of your child, call your Representatives and Senators and tell them to vote against House 495 and Senate 565.

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