Ed. Note: This is the first in a two-part series.
When a medical procedure goes wrong, the instinct to retreat into silence can feel like self-preservation. In reality, it is often the biggest mistake a physician can make.
Every physician dreads the moment a procedure or treatment produces an outcome no one wanted. Whether the complication was foreseeable, unavoidable, or the result of an honest error, what happens in the hours and days that follow matters enormously—not just for the patient’s well-being, but for the physician’s legal exposure. The most effective step a physician can take to minimize the chances of having a claim filed or being sued after a bad outcome is also the simplest: sit down with the patient, promptly and in person, and give a clear, honest, and complete explanation of what happened in a compassionate and empathetic manner.
That advice may sound obvious, but it runs directly against what many physicians are told to do. Malpractice insurance carriers routinely instruct their insured physicians not to speak with the patient after an adverse event. The reasoning is understandable from a pure litigation-defense standpoint: anything the physician says could theoretically be used against them later. But this “say nothing” approach ignores a much larger reality, which is what actually drives malpractice claims in the first place.
The number one reason patients hire a lawyer after a bad outcome is not the outcome itself. It is the feeling of being ignored, dismissed, or left without answers. Research shows that the most important predictor of whether a patient with a bad outcome will file suit is not the severity of the injury, but how the physician communicates with the patient following. Emotional anger—the sense of being humiliated, unheard, or abandoned—is a far more powerful driver of litigation than financial motivation. Open, respectful, attentive communication defuses that anger before it has a chance to escalate.
North Carolina law actually encourages this kind of communication. In 2004, the North Carolina General Assembly enacted Rule of Evidence 413 (N.C. Gen. Stat. § 8C-1, Rule 413), sometimes called the “apology statute.” The rule provides that statements by a health care provider apologizing for an adverse outcome, offers to undertake corrective or remedial treatment, and gratuitous acts to assist the patient are not admissible to prove negligence or culpable conduct in a medical malpractice action brought under Article 1B of Chapter 90 of the North Carolina General Statutes. Notably, though, communications from providers to patients admitting liability, fault, or negligence may be admissible depending on the circumstances. In plain language: a physician can express genuine sympathy, say “I’m sorry this happened,” offer to make things right, and even take corrective action without such words and acts being introduced in court as evidence that the physician was at fault in a medical malpractice action. However, statements like “I made a mistake,” “I’m liable,” or “I was at fault,” or “I was negligent” will not be protected. Careful and compassionate communication, not outright admissions of wrongdoing, are what the statute is designed to protect and facilitate.
Rule 413 was part of a broader legislative effort to protect the physician-patient relationship after adverse events. The legislature recognized what the research confirms: when physicians are free to be human—to apologize, to show concern, to offer help—patients are less likely to sue, and both sides benefit. North Carolina is one of at least 39 states with similar protections on the books, reflecting a nationwide consensus that silence after a bad outcome does more harm than good.
Practically, there is no downside to doing this. It not only minimizes the risks of a claim or lawsuit being filed, but if a lawsuit is eventually filed, it prevents the plaintiff from introducing evidence that “my doctor never talked to me” or “my doctor didn’t care.” This is important because jurors rightfully expect a healthcare provider to communicate with a patient or patient’s family following a bad outcome to express sympathy or chart a path forward. Communicating with your patient is also very helpful for your defense counsel at trial, because they can show your compassion and empathy as a healthcare provider. Most importantly, it’s the right thing to do.
Finally, as important as communication is correction. If the adverse outcome can be medically corrected, offer the corrective treatment proactively and transparently. Explain to the patient what the corrective plan involves, when it will happen, and what they can expect. This is not only good medicine, it is expressly protected under Rule 413. Patients who see a physician actively working to fix a problem are far less likely to perceive that physician as indifferent or careless. They are far less likely to sue.
The lesson is straightforward. After a bad outcome, meet with your patient promptly. Be honest. Be thorough. Answer their questions. Show that you care. If you can fix the problem, tell them how and when you will do so. North Carolina law protects your right to have that conversation without it being used against you. The real risk is not in speaking—it is in staying silent.
Should you have questions about how to navigate this or other conversations with your patients, contact Ward and Smith’s health care practice group.
