Legal Background

The patient chose not to sue Dr. S in this case, based, most likely, on their relationship and his apology. But, even if she had sought counsel from an attorney to discuss a lawsuit, the attorney would likely have advised her not to sue. Why?  There are four basic elements required for a medical malpractice case: 1) duty (automatic, by virtue of the doctor-patient relationship); 2) breach of that duty (failing to abide by the standard of care); 3) causation (the breach of the duty caused harm to the patient); and, 4) damages resulted (the breach caused physical, financial, or psychological harm). All elements must be present in order for a medical malpractice case to be successful.

In the case of Dr. S, although a duty was owed, a mistake was made, and the mistake caused the patient to be over-medicated temporarily, she did not suffer any long-term harm, and damages would be hard to prove. Patients still sometimes sue in situations like this due to anger. Dr. S’s apology may have dissipated any anger that the patient had in this case.

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Protecting Yourself

Apologizing when you realize you’ve made a mistake should be common sense. Historically, many clinicians have been hesitant to apologize, even when they want to, for fear that their apology will be used against them in a lawsuit. Over the last decade, however, that attitude has been changing. Some hospitals have adopted apology and disclose programs, and have found them to reduce malpractice claims, malpractice payments, and settlement times. Today, thirty-six states (plus the District of Columbia and Guam) have so-called “apology laws” which prohibit certain statements, expressions of sympathy, or other evidence related to disclosure from being admissible in a lawsuit – meaning that a practitioner need not fear the ramifications of apologizing for an error.

A list of states which have apology laws is available here. Familiarize yourself with the statute that applies to your state (if your state has an apology law). Saying sorry can be difficult, but it also may be greatly appreciated by one who was harmed (even inadvertently) by your actions.

And, if a nurse ever comments that she’s never seen a dose that size being given, stop everything and take another look at your medication order. Had Dr. S simply taken another look at his order, he might have noticed the problem and avoided the whole situation.