Forgive and Forget About the Consequences
In recent years, a number of states have passed "Apology Laws" on the premise that this type of legislation, which prevents apologies from being used against physicians in court, has been proven to lower the incidence of malpractice lawsuits. It is said that Apology Laws are just as effective as traditional tort reform measures, and most medical societies have endorsed them.
The theory behind the legislation is as follows:
Apologies prevent lawsuits.
Physicians are afraid to apologize because of the risk that their apologies may be used against them in court.
Apology Laws alleviate this apparent "Catch 22". And, as a result, they reduce medical malpractice lawsuits.
Despite its popularity, the theory is flawed in multiple ways.
First, it is illogical. If apologies prevent lawsuits, why do we need laws which exclude apologies from being used against us in lawsuits? If an apology was given, why did the patient sue? Based upon the theory, he should not have sued. Although we are told that apologies prevent lawsuits, the need for legal protection suggests that this may not be the case.
Second, the vast majority of the existing Apology Laws do not protect apologies. According to Webster's Dictionary, an "apology" is "an admission of error accompanied by an expression of regret." Unfortunately, most Apology Laws protect only "expressions of sympathy, empathy, or regret." But, they do NOT protect "an admission of error," which is a necessary part of an apology. As a result, they are really just "Sympathy Laws" rather than "Apology Laws."
This means that the statement, "I am sorry about the loss of your leg." would not be admissible, as it is merely an expression of sympathy. However, there is no reason to exclude this statement, as I have never heard of a case where something of this nature was used against a physician. Plaintiffs have no interest in showing that the physician was compassionate, caring and empathetic. Their goal is just the opposite. Excluding sympathy evidence, which no one will use anyway, therefore accomplishes nothing. However, under most Apology Laws, the statement, "I am sorry. I made mistake and it resulted in the loss of your leg." (which actually is an apology) IS admissible. The distinction is an important one.
Third, even in the few states where an actual apology is not admissible, the act of apologizing will alert the patient to the fact that there was a mistake, and he can use the medical record to prove his case. We should not be misled into thinking that apology legislation somehow seals the medical record and protects the facts of the case from being used in court. The entire medical record, including the errors which were made, is still admissible.
Even worse, although a confession of error may not be "admissible," it is certainly "discoverable." This means that, during the course of a deposition, the plaintiff attorney could ask, "Doctor, what mistakes did you admit to committing when you apologized to Mrs. Smith?" And, the doctor would be required to answer. Although the attorney could not ask this same question at trial (as the answer would be inadmissible), he could ask the physician whether he believed that he made any mistakes during the course of Mrs. Smith's care. With his sworn answer at the deposition already in the record, the physician would be left with two choices: he could either re-admit to his mistakes in front of the jury, or he could commit perjury. In the end, even in states where an admission of error is inadmissible, it is not really excluded.
Fourth, none of the laws prevent an admission of wrongdoing or error from being used by a State Board of Medicine or District Attorney. These entities have become increasingly involved in the "war on medical errors", and concerns of prosecution in the wake of mistakes are real. A nurse in Wisconsin was recently sentenced to probation after being prosecuted for manslaughter after committing a medical error. And, State Boards of Medicine regularly discipline physicians for medical errors. It is important to note that Apology Laws exclude statements from use only in "civil" actions. These laws do NOT apply to "criminal" actions brought by the DA or "administrative" actions brought by a state board. Any admission or other statements would therefore NOT be covered by any of the existing Apology Laws, and could be used against a physician by the State Board or DA.
Finally, apologizing for medical errors does NOT prevent lawsuits. In the only clinical trial which was ever published, the Lexington VA hospital experienced an increase in its number of legal cases after instituting an apology program (1). Fortunately, due to the extensive legal protections and unique patient population of the VA system, the facility was not bankrupted. However, a Harvard School of Public Health study estimated that, outside the legally-sheltered confines of the VA, widespread use of apologies would quickly bankrupt the medical malpractice system. (The authors noted that this result would occur with or without Apology Laws.) (2).
Although the statement has no logical, legal, or scientific basis, it is regularly said that Apology Laws reduce lawsuits and are just as good as traditional tort reform. It is unfortunate that endlessly repeating a false statement does not make it true, and even more unfortunate that so many people have been misled.
1. Kraman SS, Hamm G. Risk Management: Extreme honesty may be the best policy. Ann Intern Med. 1999;131:963-967.
2. Studdert DM, Mello MM, Gawande AA, Brennan TA, Wang YC. Disclosure Of Medical Injury To Patients: An Improbable Risk Management Strategy. Health Aff. 2007;26(1):215-226.
