Empathy vs. Apology: Mastering Disclosure Discussions in Healthcare

Disclosure happens every day in healthcare, from making a diagnosis to discussing test results or a patient’s care plan. The most challenging disclosure discussions revolve around unanticipated outcomes — usually delivering bad news — with patient family members or caregivers. Such conversations can result in liability claims for both physicians and healthcare facilities, especially when emotions run high.

Explore disclosure laws in Louisiana, how to show empathy without apologizing, and steps to take to prepare for difficult disclosure conversations.

Louisiana Laws for Apologies and Disclosures

In healthcare, disclosure is communicating information to patients, families, and caregivers related to an event that caused or could potentially lead to harm. Under Louisiana law, a healthcare provider's communication “expressing or conveying apology, regret, grief, sympathy, commiseration, condolence, compassion, or a general sense of benevolence” (RS 13:3715.5) cannot be used as evidence to establish malpractice liability.

However, if this communication includes an admission of fault on the part of the healthcare provider, it would be admissible. Disclosure of events is both a process and an art. Staff members who are involved in disclosure should be educated to optimize the outcome for the healthcare provider as well as the patient's family.

The Difference Between Apology and Empathy

Empathy is key to a successful disclosure conversation. Showing empathy means imagining yourself in place of the patient’s family and acknowledging their strong feelings associated with the situation at hand.

An apology is taking responsibility for a situation, expressing remorse, and offering reparation for the action taken. However, it is a common cultural practice to use the words “I’m sorry” — the same words used to apologize for wrongdoing — to express empathy. This can lead to a conflicting version of events between the physician and the patient’s family.

“If you say to me, ‘I'm sorry this is happening’ and my bias is that it's got to be someone's fault, that means you did something wrong and so it's your fault. Whereas you may be thinking that you're saying, ‘I'm sorry about the situation’, says healthcare risk management and communication expert Dr. Geri Amori, PhD, ARM, DFASHRM, CPHRM, during a recent webinar discussing proper communication after an adverse event.

“Over the years, I've had physicians say to me, ‘I was expressing empathy. And they thought I said I did it, and I didn't do it. Why are they lying?’ They aren't lying at all. That's what they heard.”

Because of such misunderstandings, it is best practice to avoid using the words “I’m sorry” in disclosure conversations. There are many other ways of expressing empathy, including statements such as:

• We feel horrible about this.
• This is incredibly sad for everyone.
• We are going to stick by you while we figure this all out.
• This is not a situation we ever want to happen.
• How can we be the most supportive to you during this time?
• We are heartbroken about this and will be with you through this.

Regardless of your expression, approaching unanticipated outcome conversations with empathy for the patient’s family is paramount.

Preparing For Disclosure Discussions

Successful disclosure conversations begin with preparation on the part of the discussion leader. By planning ahead of time, discussion leaders can anticipate the two factors that make disclosure conversations about unexpected outcomes so challenging — the family’s reaction and statements about liability.

Prepare for disclosure conversations with these steps:

• Pick the three most important facts to be remembered.
  People have a limited ability to remember information under stress. The discussion leader should choose the three most important medical facts they want the patient’s family to remember and begin the conversation with them.
• Script how to say the three key facts in the simplest, clearest way.
  When a patient’s family is receiving unexpected bad news, sharing those three facts in plain language with no jargon helps them understand what has happened and why.
  
• Bring “show and tell” (equipment, a drawing, a model).
  Sometimes using equipment, a drawing, or a model to illustrate what happened is the best way to explain the situation.
• Bring a colleague to be your eyes.
  Having a colleague in the room serves a dual purpose — it provides both a separate witness to the conversation that may notice nonverbal cues the discussion leader does not and a different source of support to the patient’s family.
• Ensure the room has water and tissues, and that it is private.
  Take the time to consider the setting of the conversation rather than holding it in a location that may be public or uncomfortable.

After the conversation is complete, make sure to:

• Document the discussion.
• Debrief with your meeting partner and the risk manager.
• Take care of yourself emotionally and physically.
• Keep all promises made to the family.

“In disclosure, trust is on the line. It's all about trust, commitment, sincerity, reliability, and integrity,” Amori says. “This is what that patient and family need from you right now. And this is what you need to communicate and commit to.”

Always Share Empathy

Disclosure conversations about unexpected outcomes are challenging. Even if a physician or a healthcare organization takes all the right steps, such conversations may not stop a patient’s family from filing a liability claim.

However, physicians can reduce the likelihood of a lawsuit by preparing for the discussion beforehand, recognizing the heightened emotion surrounding the situation, and expressing sincere empathy to the patient’s family.

LHA Trust Fund members can call upon our experienced claims staff for help in the steps before or after a disclosure. We understand potential liability concerns and the importance of investigations following unexpected complications, errors, or mistakes. Our claims professionals will help you navigate the process of disclosure and can participate in the disclosure meeting. Our goal is to assist with a collaborative and integrated approach to disclosures. We are here to support your organization, healthcare professionals, and patients.

If you have questions or concerns regarding disclosure, please contact Director of Claims Operations Jamie Lamb or Director of Claims Mike Walsh.

Want more in-depth discussion about disclosure conversations? Watch our recent webinar featuring Dr. Amori on demand.

About the Author

Allison Rachal, RN-BC, CPSO
Sr. Patient Safety Consultant, LHA Trust Funds

Ms. Allison Rachal has more than 30 years of nursing and clinical risk management experience in patient care, patient safety, risk management, case management, medical malpractice claims review, quality management, and nursing administration.

Her direct patient care included emergency room, behavioral health, and home health care responsibilities. She is well-versed in healthcare regulatory requirements (TJC, CMS, DHH) and industry best practices, and frequently educates and trains members on various patient safety topics.

Ms. Rachal holds an ANCC Certification in Medical-Surgical Nursing and is also certified as a Management of Aggressive Behaviors (MOAB) Instructor-Trainer.