Saying sorry

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Lawyers and pressure groups alike know an apology can avert legal actions against the medical profession. So why is it still so hard to apologise?

Sorry seems to be the hardest word, and it would seem this hackneyed expression is never more accurate than when applied to the medical profession. A report by the Healthcare Commission, analysing more than 10,000 complaints it independently reviewed, recommended an apology in almost one in four of those cases (23%).

Each year the NHS delivers 380 million treatments and receives 140,000 complaints. The watchdog reviews those cases where the patient is still unhappy and found that more than half (52%) of complainants wanted an apology, a better explanation or simply recognition of the event. ‘It is often a distressing and frustrating time for patients who feel they haven’t received the care they deserve,’ commented Anna Walker, the commission’s chief executive. ‘It is striking that so many people simply want an apology and steps taken to ensure the problem is not repeated.’ The report found that less than one in five (18%) wanted to take action against medical staff.

Sadly, such findings do not amount to a revelation for many claimant clinical negligence lawyers. ‘We have known exactly this for more than 20 years,’ comments Russell Levy, partner at Leigh Day & Co. ‘Most of the clients we see are people who have suffered serious harm. They are more interested in an explanation as to what happened, an apology and an assurance that it will not happen again than they are in claiming compensation.’

Muiris Lyons, a partner in Irwin Mitchell’s medical law and patients rights team, mentions a recent case of his involving the death of a newborn child. ‘We settled the case, but the thing that meant most to the client was the letter from the hospital. As far as the clients’ own emotional needs and the demands of the grieving process are concerned, these apologies have a critical importance.’

The Action against Medical Accidents (AvMA) charity has campaigned against what its current chief executive Peter Walsh calls ‘the defensive culture’ in the medical profession for 25 years. One of the group’s central aims is to introduce a legal duty of candour on the part of medical staff.

‘The vast majority of our experience shows that, more than anything else, people just want to know the facts,’ says Walsh. ‘They want a proper investigation and full explanation as to what is going on. They almost always want assurances that lessons have been learned and practices made safer for other people. People want to know that some good has come out of their own experiences.’

AvMA advised around 4,000 people last year, fewer than one in ten of whom took legal action, says Walsh. ‘Even of the 10%, maybe half wouldn’t take legal action had they been dealt with openly and honestly from the start, and had the right explanation or apology.’

But this looks, if anything, less likely to happen. Leigh Day’s Levy detects a ‘hardening of attitudes’ since the NHS Litigation Authority (NHSLA) was set up in 1995. ‘Over the years the NHSLA has acted more and more to confine the panel lawyers who act on their behalf to those from an insurance background, whose approach tends to be not to admit anything ever if they can possibly help it.’

Urban myth?

So why are doctors apparently so resistant to saying sorry? Many would say that they are not. The Medical Defence Union (MDU), the body that helps defend doctors against allegations of malpractice, claims to encourage members to tell patients if something has gone wrong and to apologise. It is ‘a bit of an urban myth’ that doctors don't say sorry, says Dr Emma Cuzner, an MDU medico-legal adviser.

Section 2 of the Compensation Act 2006 states: ‘An apology, offer of treatment or other redress shall not of itself amount to an omission of negligence or breach of statutory duty.’ She explains that, if something goes wrong, patients are entitled to a prompt and truthful account of what has happened, which should be accompanied by an explanation by the clinician of what they propose to do to put the matter right and an apology where appropriate. This is also stated in the General Medical Council’s Good Medical Practice guidelines, published in 2006.

‘We always say at the outset that a lot of people just want an apology and an explanation, and if you do that the complaint is not likely to run on,’ Dr Cuzner explains.

‘There is no resistance by and large from the indemnifier,’ insists Bertie Leigh, senior partner at Hempsons, who leads the firm’s healthcare team. He acts for health authorities, trusts, the MDU and is also solicitor to professional bodies such as the Association of Anaesthetists, Royal College of Paediatrics and Child Health, and the Royal College of Obstetricians and Gynaecologists.

Leigh reckons that ‘one of the first circulars’ to be issued by Steve Walker, chief executive of the NHSLA in 1997, stated it was both ‘natural and desirable’ that those involved in treatment that produces an adverse result ‘sympathise with the patient or relatives and express sorrow or regret at the outcome’ and that such expressions of regret would not normally ‘constitute an admission of liability either in part or in full’. ‘[The NHSLA] have said that repeatedly since 1997,’ he adds. A similar position was stated almost a decade earlier in the article ‘Don’t be afraid to say sorry’ by Dr Kate Allsopp, published in the MDU journal.

‘It may well be that, in some cases, NHS bodies are reluctant to apologise because they don’t know what has happened – that’s always been a problem but that’s the only "resistance" I am aware of,’ says Leigh. ‘One has to realise that NHS claims come to trial on liability in about 2% of cases, and almost all of them are resolved by people either admitting liability or persuaded by the other side that there is no liability.’

Walsh at the AvMA disagrees. ‘Medical professions over the years have developed a defensive culture. They feel the world is out to get them and there is a collegiate feeling – the profession looks after the profession.’ He argues that it is not just the likes of AvMA that are saying it but points to the Department of Health publication Safety First, published in December 2006, which talks about a ‘culture of denial’.

He continues: ‘What’s really galling is that, from the top, politicians and the Department of Health say the right thing – that they should be open and honest, and if they were open and honest it would prevent some of the cases going legal. However, the opportunities to get the message across are not taken.’

Missed opportunities

Chief Medical Officer Sir Liam Donaldson, in his 2003 report, Making Amends, proposed that an overhaul of compensation for medical negligence would also impose upon NHS staff a ‘duty of candour’, obliging them to inform the patient if errors occur during treatment. ‘In other words, not just that it should be the right thing to do ethically and morally, but that this is the law. If you know something has gone wrong then you have to disclose it,’ Walsh explains. ‘Many countries have adopted such a law and the Chief Medical Officer has now recommended it, but the government has rejected it.’

Leigh points out that such a duty has been recognised by the courts and, in particular, by Lord Donaldson when he was Master of the Rolls in the 1985 case of Lee v South West Thames, which referenced Dr Allsopp’s article. It was also flagged up by Lord Woolf in his Access to Justice report.

‘It is clearly understood that there is a professional duty, and professional duties nowadays seem to have more bite behind them than legal duties,’ says Leigh. ‘The GMC is so much more frightening to the average clinician than the courts because it threatens their career as opposed to the purse of the public indemnifier.’

Walsh argues that there are two basic weaknesses by virtue of the duty being expressed only as a professional one rather than a legal one. He argues that it only applies to health professionals, not to risk managers, complaint managers and other hospital staff.

‘The other point is that it just isn’t working,’ he says. ‘A couple of years ago we asked the GMC if they could give us any examples... of them bringing a case against the doctor on the basis of a breach of that stipulation. They have not been able to give us one single example.’

Walsh also points to another ‘really frustrating, massively missed opportunity’ when the NHSLA published a circular last August which appeared to restate the law but, apparently, not in an altogether accurate fashion, claiming that ‘an expression of regret would not normally constitute an admission of liability’. Walsh argues this is simply wrong – such an expression is not an admission of liability as stated in the Compensation Act.

‘Why create doubt? There will be a risk manager at an NHS hospital reading the guidance thinking that there is doubt.’

The guidance then goes on to state that care needs to be taken in the dissemination of an explanation ‘so as to avoid future litigation risk’. ‘What is that all about?’ asks Walsh. ‘Surely you should give full factual explanation. How can you give the full facts with a view to avoiding future litigation? It is totally contradictory. I am sure this was done with good intentions, but the culture is so embedded that mistakes are made.’

In summary