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June 17, 2019

Do 'apology laws' work? Sorry, the answer may be no

Daily Briefing

    Many experts believe that so-called "apology laws"—which allow doctors to apologize to patients for an error without that admission being used against them in court—might help reduce malpractice lawsuits. But an analysis published earlier this year in the Stanford Law Review shows they could have the opposite effect.

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    Analysis details

    Apology laws are on the books in 39 states and Washington, D.C. The goal of these laws, according to the legal news service JD Supra, is to enable doctors to show humanity and to restore dignity to injured patients. Experts also had speculated that such laws might reduce malpractice lawsuits by giving doctors and patients an opportunity to discuss medical errors without fear of legal vulnerability.

    For the analysis, researchers analyzed malpractice claims over an eight-year period from a large national malpractice insurer that covers more than 90% of surgeon and non-surgeon physicians in a particular specialty. The researchers did not identify the insurer or the specialty.

    The researchers found that about two-thirds of the claims ended up in court, and the existence of a state apology law did not substantially affect whether a lawsuit against a surgeon went to court. Similarly, the laws did not appear to influence the average payout for surgeons.   

    However, among non-surgeons in states with apology laws, claims were 46% more likely to result in a lawsuit. Further, apology laws "increase the average payment made to resolve a claim" against a non-surgeon, the researchers wrote.

    They added, "Overall, our findings indicate that on balance, apology laws increase rather than limit medical malpractice liability risk."

    Why apology laws may backfire

    As for why apology laws seemed to increase lawsuits in some cases, the researchers said that an apology could alert a patient to a medical error of which they were previously unaware.

    "[A]n apology may alert the patient to malpractice she would not otherwise have discovered or embolden the patient to conclude that malpractice has occurred when she would have otherwise been unsure," the researchers noted. The researchers added, "even if patients cannot use the apology itself as evidence, the apology may alert patients to potential malpractice and encourage them to seek other forms of (admissible) evidence."

    Further, if a provider is unable to "fully explain the nature of a particular medical error," then a patient "may not perceive an apology as sincere, which may provoke rather than assuage anger," the researchers wrote.

    To make apology laws more effective at reducing malpractice lawsuits, physicians need to be trained on how to apologize to patients, the researchers said.

    "The answer almost certainly lies in training," they wrote. "Physicians in the disclosure programs that have been studied likely benefitted from being trained on when to apologize and what to say when apologizing" (Leefeldt, CBS News, 6/12; Broda-Bah, Jdsupra, 5/14; McMichael et. al., Stanford Law Review, February 2019).

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