This article from Medscape's Ob/Gyn & Women's Health discusses whether a physician who has made an error (in medication, judgement, etc.) should disclose the error to the patient or not.
"Disclosure of Medical Errors: What Factors Influence How Patients Respond?" says in part:
Nondisclosure increased the likelihood of changing physicians, and reduced satisfaction and trust in both error conditions. Nondisclosure increased the likelihood of seeking legal advice and was associated with a more negative emotional response in the missed allergy error condition, but did not have a statistically significant impact on seeking legal advice or emotional response in the monitoring error condition. Neither the existence of a positive relationship nor an offer to waive costs had a statistically significant impact.
A particularly important passage in the "Discussion" states:
Studies have found that patients and family members pursuing legal action subsequent to an error are often motivated by the desire for explanations and apologies; however, such studies do not provide evidence that full disclosure can prevent legal action.
Taking a sharp turn towards midwifery, I will say that, most of the time, we have a very intimate and detailed relationship with our clients. We spend months and months, hours and hours getting to know them before they are in labor, where we spend more hours and hours serving them in their homes. Much of this "getting to know you" allows each of us to see how we respond over time, how we respond during times of stress (as every pregnancy invariably endures) and what kind of relationship the parents have with each other or, in the absence of a partner, how mom responds to her support system.
This information is invaluable as we each find ourselves together, mom in labor, sometimes very tired, the midwife, sometimes also tired, relatives either supportive or derisive, an assistant poking around a mom's house for needed supplies, and just a general invasion of mom's privacy during her intimate birthing moments.
If I have a mom that weeps during the pregnancy because she suspects her husband had an affair, it won't be so surprising for her to cry during her labor. If she began shoveling food in or wanting to knock back swigs of alcohol (hyperbole) instead of crying, I would be pretty concerned.
If I have a mom who verbalizes well during the pregnancy, is able to tell me what the baby is thinking today and how her dreams are coming along, yet, in labor, finds herself mute, confused and sobbing, I know this mom is needing an anchor to help her find her center again.
None of this is to say women aren't allowed to do something uncharacteristic when in labor. I don't mean that. I do mean that getting to know a woman during many months of care allows me to "get" her personality and find a place of "knowing" when all is well and normal versus when she is being tossed in a storm on the sea of birth.
So, when a midwife makes a mistake - forgets to call the client with an abnormal result, doesn't think about doing a procedure that was routine and could have kept her home before sending her to the doctor or hospital, made a supreme error in judgement such as a baby's size that caused physical damage during birth - our clients know pretty quickly that it was our fault and we did it. They can usually read it on our faces because they know us so well.
The "getting to know you" goes both ways.
I have had a couple of seriously difficult births that I really expected to see played over and over again in a courtroom. Not because of anything negative (or wrong) that I did, but because the labor/birth/outcome was so dramatically different than we expected. One shoulder dystocia in particular continues to haunt me. (Ask anyone around me - I'm sure I bring it up at least once a month.)
Listening to women in the middle of their birth traumas, I learned one thing LOUDLY - and that was to talk to the women. Talk, talk, talk. Share. Explain. Apologize. And apologize again. And again.
During that one particular experience (and we'll just use that as an example since it is my most vivid thought at the moment - feel free to insert your nightmare/fear/mistake here), I most certainly would have rather run... as far away as I could... to avoid listening to the mother's anguish... to not have to hold her as she wept about how close her baby came to dying... to shove the memory in my head as far under as possible because I nearly lost a baby. It didn't matter that the baby lived. It didn't matter that the baby wasn't permanently damaged.
It mattered that mom and dad were in shock and I was, too.
Instead of running, I forced myself to continue communicating with mom and dad. I offered myself in a myriad of ways. I called, emailed, sent a couple of cards and letters in the mail - I always told them how important they were to me and I was always here to discuss things should they ever want to.
They nearly severed communication with me. Pleasant when we talked (well, polite anyway), they were more curt in emails and never answered snail mail.
I didn't walk away.
I knew we had to do the baby's birth certificate and used that reminder once a month to do my part and keep the lines open. Once the baby was six months old, mom was ready to see me again (she'd never said she didn't want to see me... it was just something I felt happening) and we went for the birth certificate. Kind and pleasant, the experience was nice and then, at lunch, mom began to unload her burden.
She felt I'd done damage to the baby during the resuscitation. She didn't think the shoulder dystocia was as dramatic as we said it was. She felt abandoned (?!) when I had to relinquish her care to a physician because of a very serious medical condition that developed postpartum. The waterfall of feelings began at lunch and continued in multi-paged emails we bounced back and forth between us.
I gave her explanations. I sent her links that were relevant to the shoulder dystocia as well as why I sent her to a doctor for her medical condition. I owned up to what I had done, even if it was the right action to save both of their lives. I apologized that things scared her so badly. I apologized that she had to have that experience. I apologized for the things I did that made her angry. Even if they were justified because I had to do them for their health and life. She still deserved/deserves my compassion and apologies.
The bursts of emails slowed and then trickled as mom was able to reframe the situation/birth/experience with the added information and my humility that formed a pretty decent basis for a new beginning together.
I knew there was something wrong - for those first six months. I knew it. Everyone around me told me I was crazy, that she was fine or she'd say something, to just forget it. But, I knew.
I cried about that birth for all of those six months. Once the letters between us began, I stopped crying. I haven't cried since. We, both mother (and father) and I, are healed.
When I speak to student midwives, I share this experience with them. I tell them how easy it would be to just turn around and let the lapse in communication guide the flow of energy. I tell them that they MAY NOT do that. They will be brave. They will remain strong. They WILL face any demon they encounter, even if it is a phantom to them.
I have known - still know - midwives who think silence is the best option for a woman angered by her birth experience. I am in school to be a therapist to their clients - damaged beyond words, more by the lack of communication and apology than any wrong-doing could ever have caused.
It is crucial for student/apprentice midwives to hear what I am saying: DO NOT ACQUIESCE TO THE SILENCE - DO NOT ALLOW YOUR FEAR OR SHAME KEEP YOU FROM YOUR PAINFULLY DAMAGED (emotionally/spiritually/physically/mentally) CLIENT.
Make yourself stand in the fire. Take it.
Your client has to.
So should you.
So, heading back to the beginning where doctors might not be sued if they owned up to their mistakes, I am willing to bet the relationships could never endure the intensity some women need in order to process their difficult births. I think an apology is all well and good - and might satisfy some women, but more, I believe, the women should be able to sit down with the doctor and perhaps a mediator to go over the details mom remembers and have the doctor explain himself or herself and the why's of what s/he did.
I can hear physicians laughing their heads off. As if they had the time to do that? If they even had the desire, who would pay for that lost time?
I'm willing to bet the time would better be "lost" in a counseling session than a many-year'd lawsuit that launches premiums upwards and scars the record of the doctor in question.
Maybe the doctor needs to reframe things a bit.
Oh, and those midwives, too.