What determines whether an adverse event escalates to a lawsuit or becomes a situation that can be resolved through proper communication?
Adverse events are an unavoidable reality in the practice of medicine. An adverse event is defined as an unintended outcome or injury that can occur even when the care provided met the appropriate standard of care. Most physicians may automatically assume an adverse event will result in a malpractice lawsuit, particularly when a patient accuses them of “medical negligence” or “substandard care.” What many people may not realize is that an unexpected complication or outcome does not necessarily mean there was negligence. It is important, however, to separate the unexpected outcome from the objective facts of the patient’s care.¹ The patient’s experience following an adverse event—particularly the physician’s response—can influence what happens next.
Research on communication and resolution programs suggests that transparent communication, investigation of what occurred, appropriate apology or acknowledgment, and fair resolution can be implemented without increasing malpractice liability.¹ Evidence also suggests that these actions may reduce certain malpractice-related costs and claims by addressing patient concerns before disputes escalate into litigation.¹
The First 24 Hours Matter the Most
Disclosure isn't merely about communicating with the patient; it is part of a broader process of identifying what went wrong, learning from the event, and preventing recurrence. The American Medical Association (AMA) emphasizes that physicians have an ethical obligation to promote patient safety and communicate honestly with patients when an adverse event/outcome or error has occurred.²,³
Physicians involved in an adverse event/outcome should:
- Disclose the outcome
- Explain the potential harm
- Provide information necessary for future medical decisions
- Acknowledge the error and express compassionate concern
- Explain the efforts being taken to prevent reoccurrence of similar errors
- Ensure continuity of care to preserve patient-physician relationships
- Communication Can Change the Trajectory
Communication Can Change the Trajectory
The Agency for Healthcare Research and Quality (AHRQ)/Communication and Optimal Resolution (CANDOR) framework advocates early disclosure, investigation, communication, and resolution rather than a traditional “deny-and-defend” approach.4 The CANDOR process is designed to provide a timely, thorough, and just response to unexpected patient harm to help prevent medical liability claims in the long term and improve patient satisfaction.¹
The California Physician’s Legal Handbook introduces the Fair and Just Culture model, which emphasizes learning and accountability over blame and punishment and recognizes that reporting errors allows organizations to identify system problems, learn from them, and prevent future errors.5
“I’m Sorry” vs. “I’m Admitting Fault”
One of the most difficult moments following an adverse event is deciding what to say to the patient. Physicians may often worry that expressing sympathy or acknowledgment of what has occurred will later be characterized as an “admission of liability.”6
California law recognizes an important distinction between expressing sympathy and admitting fault. California Evidence Code Section 1160 protects certain statements, writings, or goodwill gestures expressing sympathy or a general sense of benevolence relating to a person's pain, suffering, or death from being used as evidence of an admission of liability in a civil action. However, the protection does not extend to a statement of fault.6 In other words, a physician can express genuine concern for a patient's experience without necessarily making a legal admission that the physician was negligent.
Documentation, Documentation, Documentation
It is important to note that the patient’s medical record is not the place to speculate about legal liability, point fingers, or shift blame. Remaining objective in documentation is crucial to ensuring that the clinical facts and care provided to the patient are accurately documented.¹
After an adverse event, consider documenting:
- What happened: Objective description of the event and relevant clinical circumstances.
- The patient's condition: Symptoms, findings, vital signs, examination findings, and changes from baseline.
- Actions taken: Treatment, monitoring, consultation, transfer, referral, or other interventions.
- Who was notified: Appropriate members of the care team and, when applicable, leadership, or risk management.
- Patient communication: What was explained to the patient/family, questions asked, and information provided about ongoing care.
- Follow-up: Instructions, appointments, monitoring, and plans to reassess the patient.
- Ongoing investigation: When appropriate, participation in the organization's quality/safety or event-review process.
Documentation should capture the clinical facts and the patient's care—not phrases such as “this was malpractice,” “I was negligent,” or “this will probably result in a lawsuit.”
Compensation Supports Prevention
The University of Michigan Health System conducted a study examining a medical error disclosure program, which found that offering appropriate compensation was associated with a decrease in malpractice claims, lawsuits, and liability-related costs. Following implementation, the average monthly rate of new claims decreased by 36%, lawsuits decreased by 65%, and total liability costs decreased by 59%.
For physicians and risk management professionals, the takeaway is simple: fear of admitting liability should not become a reason to stop communicating with the patient. An adverse event should prompt an organized response—not avoidance. Transparent communication and early resolution can be part of an effective risk-management strategy without necessarily increasing malpractice liability.5 The physician's responsibility is to communicate compassionately, ensure the patient receives appropriate care, preserve the facts, and work with the appropriate risk management or quality team to determine what happened and what should happen next.
Tanha Ahmed, MPH, is a Senior Risk Management and Patient Safety Specialist. Questions or comments related to this article should be directed to TAhmed@CAPphysicians.com.
References
1Agency for Healthcare Research and Quality (AHRQ). Communication and Optimal Resolution (CANDOR) Toolkit.
2American Medical Association. Code of Medical Ethics, Opinion 8.6: Promoting Patient Safety.
3American Medical Association. Code of Medical Ethics, Opinion 2.1.3: Withholding Information from Patients.
4Kachalia A, et al. “Effects of a Communication-and-Resolution Program on Hospitals' Malpractice Claims and Costs.” Health Affairs. 2018;37(11):1836-1844.
5Kachalia A, et al. “Liability Claims and Costs Before and After Implementation of a Medical Error Disclosure Program.” Annals of Internal Medicine. 2010;153(4):213- 221.
6California Medical Association. “Medical Error and Adverse Events: Transformation Through A Fair and Just Culture.” CMA ON-CALL Document No. 3601. April 2022.
7Nazione, Samantha & Kristin Pace. “An Experimental Study of Medical Error Explanations: Do Apology, Empathy, Corrective Action, and Compensation Alter Intentions and Attitudes?” 20 Journal of Health Communication 1422. 2015.