Tuesday, November 30, 2004
Saturday's Washington Post ran a long front-page article that detailed a 16-year-old obstetrical med mal case and its relationship to the political battle currently brewing in Maryland over tort reform.
Much is being written -- in journals, accreditation standards, and hospital policies -- about admitting errors and the potential power and pitfalls of apologizing for bad outcomes. The contradictory strands of this debate are well illustrated by this story, which involves a 42-week gestation-age newborn who became stuck in the birth canal and whose delivery resulted in shoulder dystocia and injury to one eye. Four paragraphs, in particular, summarize the medico-legal problem from the perspectives of the mother, Donnette Dennis, and her physician, Kevin Kearney:
Kearney visited Dennis the next morning. By then, he had seen the lack of tone in Richard's right arm.
"He just told me what had happened in the delivery room, that he was sorry for what he had done," she said. "He was sorry about what happened to Richard's arm."
Kearney said he left the hospital heartbroken. He doesn't remember apologizing to Dennis but said that if he did, it wasn't to convey that he "goofed." In fact, he felt certain he handled the procedure correctly. It may be the most vexing aspect of shoulder dystocia, he said. If the baby is born with an injury, there is no way to know whether it occurred during delivery or during the baby's descent. The only certainty, Kearney believes, is that the doctor handling the delivery will be sued.
The defense presented evidence that shoulder dystocia occurs because of naturally occuring pressure within the birth canal before an obstetrician ever touches the infant. Despite this apparently strong evidence attacking the causation element of the plaintiff's case, a jury found that Dr. Kearney's decision against a C-section fell below the standard of care in such cases. For advocates of apologies to patients, the description of the trial must be somewhat chilling:
Along with medical testimony, attorneys from Schochor's firm presented two other pivotal pieces of evidence. The first, from Kearney's deposition, suggested that he panicked during the birth. He told attorneys he pulled down hard on Richard's head -- harder than during typical deliveries. The second critical detail: Kearney's apology. Why would he seek forgiveness if he had done nothing wrong?
One of the proposals pending in the Maryland legislature would, in Kearney's view, "make apologies inadmissible in court [and] have kept his words from being twisted."
Catherine Morris has assembled a good on-line bibliography on "Acknowledgement, Apology and Forgiveness." I particularly recommend Lee Taft's article in The Yale Law Journal, Apology Subverted: The Commodification of Apology, 109 Yale L.J. 1135 (2000) (WestLaw password required).