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Questioning patients and family members to identify procedural problems that the hospital needs to address for patient safety. Debriefing health professionals involved in the error and offering emotional support. Apologizing: Research indicates that when physicians take responsibility for an error and offer a genuine apology, patients and family members have less inclination to sue. Candor builds trust and makes patients and family members feel welcome in discussions about avoiding similar errors in the future. When physicians, conditioned by dire warnings from attorneys, hesitate to admit fault, patients often interpret hesitation as lack of concern, compounding their resentment. Apologies do carry a danger, because only a handful of states bar them as evidence in lawsuits. However, hospitals need to weigh the risks and benefits carefully because a growing body of evidence indicates apologies reduce litigation and offer great, though unquantifiable, emotional benefits for patients, families, and health care providers. After the University of Michigan Health System instituted an apology policy in 2002, malpractice claims decreased by half and the cost of handling them by two-thirds. More research is needed to quantify the benefits of apology, but results thus far are promising. Bartow 2003). The statute, possibly the first comprehensive malpractice reform law passed in the face of heightened public awareness of medical error (Institute of Medicine 1999), paired tort reform and insurance restructuring with a mandate to improve patient safety. The new disclosure requirement, which at the time of enactment was regarded skeptically by health care providers, in fact helped them assess and improve communications with patients when medical errors occur. Hospital administrators quickly understood that, without an open conversation about the “serious event” prior to receipt of a disclosure letter, patients and their families might be more likely to pursue litigation. The MCARE Act also prompted consideration of how to process claims for compensation in a fair and efficient manner and how to turn discussion of adverse events into opportunities to learn how to improve patient safety. “Medical error” means “the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim” (ibid.). Often “medical error” refers to preventable systemic problems as well as poor performance by individual health care providers (Barach 2003). Depending on the facts, a “serious event” could be a medical error or an adverse event. We use the phrase “medical error or adverse event” to capture the universe of system errors and injuries due to medical management. “Negligence” has a much narrower meaning under state malpractice law: a deviation from the “standard of care” defined by customary or reasonable practice among similarly situated professionals. The boundaries of these definitions are not always obvious to patients and their families. For example, a patient may find it baffling that a central line placement that fatally punctures a lung may be within the legal standard of care. Patients often think that a poor outcome is evidence of a mistake. Although patients are told about foreseeable risks during the informed consent process, they cannot always absorb all that is said. Patients may also have a cognitive bias, and incorrectly assume that they will escape harm. Whatever the appropriate terminology, when the odds play out badly for a particular patient, poor communication about the risks before a procedure and poor communication afterwards increase the likelihood of litigation (Hickson et al. 1992). Each training began with a review of the counterintuitive information about why physicians are sued. Researchers have found that after a medical error the factors that put physicians at risk of being sued are not the quality of medical care (Entman et al. 1994), not chart documentation (ibid.), and not technical negligence (Harvard Medical Practice Study 1990), but ineffective communication with patients (Lester et al. 1993, Levinson et al. 1997),sued physicians after a perinatal injury to a child emphasizes ineffective communication. He found that 33% sued because they were advised to do so by a third party, often another health care provider; 24% felt the doctor was not completely honest or had lied to them; 24% needed money for the child’s future care; 20% couldn’t get anyone to tell them what had happened; and 19% wanted revenge or to protect others from harm. Many of those suing felt their physician would not listen (13%), would not talk openly (32%), attempted to mislead them (48%), and did not warn them of potential long-term neurodevelopmental problems (70%) (Hickson et al. 1992). In another major study, Gallagher looked at the attitudes of patients and physicians after a medical error. His findings highlight the mismatch between what patients want and what physicians provide after an adverse event or medical error. Patients want “basic information”: an explanation of what happened and why, the health implications of the error, and how the problem will be corrected so future errors can be prevented (Gallagher et al. 2003). By contrast, for understandable reasons, physicians tend to choose their words carefully, are likely to mention the adverse event but not that an error has occurred, and are unlikely to tell the patient what caused the error and how it might be prevented from recurring. Physicians are trained to diagnose medical problems, deliver bad news to patients, and discuss hard choices about treatment options. The communication skills physicians use in these tasks are helpful when disclosing a medical error or explaining an adverse event, but communication in such situations is more difficult, complex, and demanding. Mediators spend a great deal of time developing their active listening skills. Physicians, other health care professionals, and hospital administrators face an even greater challenge using these skills effectively. Whereas mediators are, by definition, neutral about the outcome of the discussion, health care professionals have obvious stakes in a disclosure conversation. A physician is also likely to be preoccupied with the medical reality of the situation and not be well equipped to concentrate on the communication needs of the patient or family. After an adverse event or medical error, the physician or nurse may experience strong emotions such as guilt, failure, shame, remorse, or fear about the impact on his or her career (Shapiro 2003). Thus, active listening during these critical times can be understandably extremely difficult for health care professionals. In the stress of the moment, physicians may not be able to evaluate whether a disclosure conversation has gone well. For example, at one training session, a hospital administrator described a physician who had been involved in a serious event. The physician had told the hospital administrator he was pleased with the disclosure conversation.

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