Patients

When the Unexpected Happens

Having a sincere discussion with a patient after an adverse event can be important while also knowing what will be confidential under your state laws.


Addressing unexpected outcomes with patients and their families can be intimidating. Legal protection of such communications, including apologies, varies by state. Health care organizations may have their own disclosure and early resolution programs. The following MICA member-state summaries of the applicable laws, policies and procedures, and programs, such as CANDOR (“communication and optimal resolution”), can help you navigate these sensitive discussions.

Arizona

Disclosure and Apology

Patients may be emotional and full of questions upon learning of an adverse event or unexpected outcome. Practitioners should avoid appearing evasive and approach the patient and their family with sincerity, honesty, and compassion.1 In 2005, Arizona passed a law affording protection to practitioners’ statements of apology.2 Confidentiality applies to “any statement, affirmation, gesture or conduct expressing apology, responsibility, liability, sympathy, commiseration, condolence, compassion or a general sense of benevolence that was made by a health care provider or an employee of a health care provider.” Such expressions of apology cannot be introduced as evidence of fault in a potential medical professional liability action.3

An analysis of over 20,000 closed claims filed nationwide showed that communication was a factor in 30% of the cases.4 (13)Arizona’s apology law, however, does not make discussions about the “what,” “why,” and “how” of an adverse event confidential. When answering questions about why the outcome occurred, it is important to be factual and avoid speculation. It is okay to tell the patient you will complete an investigation to understand the root cause of an unexpected outcome in an effort to avoid similar outcomes in the future. The key is to be honest without providing an opinion on things you may need time to sort out. 

Early Resolution Programs and Statutes

Usually, hospitals and health care facilities require employees and medical staff members to follow their disclosure-and-apology policy and procedure, the goal of which is to promote early resolution of incidents outside of litigation and promote patient safety. A copy of the policy and procedure should be available to employees and medical staff members.

Don’t wait until an adverse or unexpected outcome occurs to read the organization’s policy and procedure for disclosures, apologies, and early resolution program requirements. Read the policy and procedure now. Before meeting with the patient and/or family, consider how to comply with the organization’s policy and procedure; limit the discussion to the known facts; and express empathy, concern, and your availability for future questions. The organization’s process may offer further protection in the event of a lawsuit.

Report all claims, occurrences, and lawsuits, including events related to CANDOR or other early resolution program, as quickly as possible by calling the MICA Claim department Monday through Friday 8:30am-5pm MST at 800-352-0402 or 602-956-5276.

Nevada

Disclosure and Apology

Nevada does not have an “I’m sorry” law protecting expressions of apology from disclosure during a lawsuit4, or a law to protect discussions about the circumstances surrounding an adverse event. 

An analysis of over 20,000 closed claims filed nationwide showed that communication was a factor in 30% of the cases-4 (19)It may be appropriate to acknowledge pain, loss, or grief with sincerity and empathy, but avoid words that signal fault and refrain from speculation about what occurred. Stick to the facts as you know them at the time. Keep in mind that an investigation may reveal the root cause of an adverse event to be different than initial impressions so offering opinions or assumptions about what happened may be harmful if the patient pursues legal or licensing board action.

Early Resolution Programs and Statutes

Usually, hospitals and health care facilities require employees and medical staff members to follow their disclosure-and-apology policy and procedure, the goal of which is to promote early resolution of incidents outside of litigation and promote patient safety. A copy of the policy and procedure should be available to employees and medical staff.

Don’t wait until an adverse or unexpected outcome occurs to read the organization’s policy and procedure for disclosures, apologies, and early resolution program requirements. Read the policy and procedure now. Before meeting with the patient and/or family, consider how to comply with the organization’s policy and procedure; limit the discussion to the known facts; and express empathy, concern, and your availability for future questions. The organization’s process may offer further protection in the event of a lawsuit.

Report all claims, occurrences, and lawsuits, including events related to CANDOR or other early resolution program, as quickly as possible by calling the MICA Claim department Monday through Friday 8:30am-5pm MST at 800-352-0402 or 602-956-5276.

Utah and Colorado

Disclosure and Apology

Utah and Colorado both have apology laws5 and legal protections for discussions about how and why an unexpected outcome occurred. Utah’s apology law protects expressions of “apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence” from being used as evidence of fault in a medical professional liability lawsuit; Colorado’s apology law protects expressions of “apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence” from being used for that same purpose. Utah’s law also specifically protects practitioners’ descriptions of the facts surrounding the unexpected outcome from being used against them.

However, unless the practitioner has chosen to participate in a formal Candor investigation as described below, they should avoid discussion of opinions and statements accepting or casting blame for the unexpected outcome. Such statements are not protected from disclosure in legal proceedings unless made in the course of a Utah or Colorado Candor Act (“Candor Act”) investigation.

Early Resolution Programs and Statutes

The Candor Act in both Utah and Colorado created a voluntary process by which practitioners can engage adversely impacted patients or other interested parties in an investigation of the adverse event, and communicate information gathered during the investigation to the patient or other interested parties. The goal is to resolve potential conflicts that may lead to legal action soon after the unexpected outcome is known. The Candor Act’s conflict resolution goal also includes offering compensation, if the situation warrants, and disclosing steps that will be taken to avoid similar outcomes in the future. MICA members should notify the MICA Claim department before offering compensation.

However, if early resolution is not possible, the Candor Act does not restrict a patient’s right to file a lawsuit or board complaint. It shields the information exchanged as part of the official Candor investigation from disclosure if the unexpected outcome becomes the subject of litigation.

An analysis of over 20,000 closed claims filed nationwide showed that communication was a factor in 30% of the cases-4 (15)Additionally, hospitals and health care facilities usually require employees and medical staff members to follow their disclosure-and-apology policy and procedure. A copy of the policy and procedure should be available to employees and medical staff members. Don’t wait until an adverse or unexpected outcome occurs to read the organization’s policy and procedure for disclosures, apologies, and early resolution program requirements. Read the policy and procedure now. Before meeting with the patient and/or family, consider how to comply with the organization’s policy and procedure; limit the discussion to the known facts; and express empathy, concern, and your availability for future questions. The organization’s process may offer further protection in the event of a lawsuit.

Report all claims, occurrences, and lawsuits, including events related to CANDOR or other early resolution program, as quickly as possible by calling the MICA Claim department Monday through Friday 8:30am-5pm MST at 800-352-0402 or 602-956-5276.

MICA Members

Honest communication is an important aspect of the physician-patient relationship. Understanding your legal protections may help guide difficult conversations about unexpected outcomes.

For additional questions, MICA’s Risk Management Hotline is available Monday through Friday, 8:30am-5pm MST at 800-705-0538, or email rm_info@mica-insurance.com to discuss.

If you ever need to report a potential claim or claim, please call our Claim team at 800-352-0402 or 602-956-5276 or by logging into our member portal on the website.

 


1 The Arizona Medical Board has found a lack of candor in such situations to be an aggravating factor in determining appropriate disciplinary action for a physician who was not forthright with a patient after an unexpected post-surgery complication.

2 For more information on apology and disclosure in Arizona, see Disclosure of Adverse Events by Paul Giancola, published in MICA’s Risk Advisor, p. 15 (June 2019).

3 The Arizona Court of Appeals upheld the constitutionality of this law in a 2021 decision. To read more, please see Arizona’s “I’m Sorry” Law Survives Constitutional Challenge by Paul Giancola and Claudia Stedman.

4 For more information on apology and disclosure in Nevada, see Disclosure of Adverse Events by Brent Vogel, published in MICA’s Risk Advisor, p.18 (June 2019).

5 For more information on apology and disclosure in Utah, see Disclosure of Adverse Events by Jaryl Rencher, published in MICA’s Risk Advisor, p.16 (June 2019).

The content of this publication or presentation is intended for educational purposes only; is not an official position statement of Mutual Insurance Company of Arizona (MICA); and should not be considered or relied upon as professional, medical, or legal advice or as a substitute for your professional judgment. Consult your attorney about your individual situation and the applicable laws. The authors, presenters, and editors made a reasonable effort to ensure the accuracy of the information at the time of publication or presentation but do not warrant or guarantee accuracy, completeness, or currency of such information. As medical and legal information is constantly changing and evolving, check for updated information and consult your attorney before making decisions.

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