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Sunday, March 8, 2009

U.S. shows way to medical apologies

For doctors who erred, saying sorry used to be taboo. But that's now changing in Japan


Staff writer

So you think apologizing is the norm in Japan? Well, think again — especially with regard to its venerable medical profession.

News photo
Deep feelings: Kiyoya Kawada, an obstetrician at Kagawa Prefectural Central Hospital in Takamatsu, Kagawa Prefecture, bows Feb. 27, 2009 as he apologizes for having implanted a woman with a fertilized egg from another patient. KYODO PHOTO

As malpractice lawsuits have shown for decades, Japan's doctors — who have long assumed unfettered paternalistic control over patients — often clam up, suffer memory blanks and retreat into cliquish denial when faced with allegations of malpractice or medical error.

Recently, though, a number of hospitals have adopted a policy in which they apologize to patients and/or their families as soon as a medical error is discovered. Paradoxically, the movement has been inspired by doctors in the United States, which is regarded as a far more litigious society than Japan.

One of the driving forces behind the new policy here is Kenichi Hanioka, an associate professor at the University of Tokyo. Hanioka has been spearheading a movement known as the SMAN Project (Stop Medical Accident Net Project), whose Japanese title is Iryo-jiko Shinjitsu-setsumei Shazai-fukyu Purojekuto (literally, "Project Aimed at Promoting Telling the Truth and Apologizing").

Hanioka's involvement in this movement began in 2006, when he learned about a landmark U.S. disclosure/apology policy report titled "When Things Go Wrong — Responding to Adverse Events," which was adopted that year by 16 Harvard University-affiliated hospitals. He immediately asked Lucian Leape, adjunct professor of health policy at Harvard School of Public Health and a key guideline campaigner, for permission to translate it into Japanese.

SMAN's translation of the report immediately sent a buzz around Japan's medical establishment. To date, more than 120 professionals — including 61 heads of hospitals and medical universities — have signed up as supporters, with the biggest boost to the movement coming in 2008. In June of that year, the Zensharen medical group, which runs 52 hospitals, adopted the guideline mandating all its facilities to tell the truth and apologize to victims — and compensate them adequately.

Such moves in Japan closely reflect the aims of the Harvard document, which outlines the principles for medical service providers to follow with regard to patients and/or their families in the event of medical errors. The required steps include a swift acknowledgment of the incident (usually within 24 hours of it being discovered); expression of regret; and a full explanation of what happened. When an obvious error has been made, "the caregiver should admit it, take responsibility for it, apologize and express a commitment to finding out why it occurred," the document states.

Such a straightforward policy suggestion might be surprising coming from the U.S., where possible legal or financial implications have long inhibited anyone's willingness to apologize. But Hanioka says the U.S. medical community has been grappling with this problem for decades, since studies began to show up to 98,000 people a year dying in U.S. hospitals due to medical negligence.

Medical errors also came under the spotlight after the 1994 death of Betsy Lehman, a Boston Globe health reporter given a fatal drug overdose while undergoing chemotherapy for breast cancer. That tragedy, which occurred in a Harvard University hospital, has been a driving force behind the 2006 policy, Hanioka says, despite a long-held belief in the U.S. that an apology may be taken as an admission of guilt — leading to sky-high court awards. He notes, however, that many hospitals have reported a sharp decline in legal expenses after instituting disclosure and apology policies.

Indeed, Richard C. Boothman, chief risk officer at the University of Michigan Health System — one of the first health-care organizations to adopt a full-disclosure policy — is quoted in a May 18, 2008, story in The New York Times saying that claims and lawsuits were down to 83 in August 2007 compared with 262 in August 2001.

"Improving patient safety and patient communication," he maintains, "is more likely to cure the malpractice crisis than defensiveness and denial."

To coincide with such moves, at least 29 U.S. states have recently enacted so-called Sorry Laws, which exclude medical professionals' words of apology from being used as evidence of guilt in court.

But in Japan — where saying sorry through the use of the word sumimasen is a routine part of everyday life, and where the phrase can also be used to mean "excuse me" or "thank you" — how are doctors' apologies following medical errors interpreted in court?

In a paper published in the September 2007 issue of the medical journal Iryo Anzen (Medical Safety), Yoshimitsu Yamazaki, a physician who has obtained a law degree and is preparing for the bar exam, cited 32 court rulings that referred to apologies made to patients by medical professionals. He categorized these apologies into two types: one he termed kyokan hyomei (an expression of empathy or regret for not meeting patients' expectations); and the other sekinin shonin, which includes an admission of oversight. Courts have excluded the first type as evidence of negligence — but not the other.

The cases examined by Yamazaki spanned both criminal and civil suits, including a doctor who overlooked a tumor during a checkup, a surgeon who left a piece of gauze inside a patient during surgery, and a nurse who chose the wrong patient for surgery. In many civil cases, he found that judges reduced the damages awarded to plaintiffs when defendants had apologized, while in some criminal cases they cited an apology as a reason for leniency.

In a upbeat assessment of Yamazaki's findings, Hanioka believes they constitute proof that, in Japan, the movement could take root without the help of U.S.-style Sorry Laws.

"Explaining the truth and apologizing is a universal trend, whether you are in the East or the West," Hanioka says. "Behind this concept is the reality that, in the course of a doctor's career, a medical accident may well be unavoidable. Doctors are not perfect, and that's why hospitals must have systems to deal head-on with this problem."



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