Apologizing for Medical Missteps: Whether it's a Mistake for Physicians

February 22, 2014
David Doyle

Thirty seven states have now passed some version of medical malpractice apology laws. Here's what physicians need to keep in mind.

Last December, Pennsylvania became the latest state to pass a law allowing physicians to apologize to patients after something goes wrong during a medical procedure - without the risk of the apology being used against them as an admission of guilt in a malpractice lawsuit.

Pennsylvania Senate Bill 379, which has since been nicknamed the “apology law,” was cosponsored by Senators Pat Vance and Gene Yaw. According to Vance and Yaw, this bill does not prohibit patients from suing physicians who have harmed them. The authors also say victims are less likely to pursue a medical malpractice lawsuit after obtaining an explanation and apology.

Is there any evidence to back up that claim?

Thirty seven states have now passed some version of the apology law. The first to do so was Massachusetts in 1986. Not long after that, a study by Marlynn L. May and Daniel B. Stengel, titled “Who Sues Their Doctors? How Patients Handle Medical Grievances,” found that patients were more likely to sue if their doctors failed to show concern for them.

One of the most comprehensive studies concerning the effect of apology laws on medical malpractice frequency and payouts came in 2011. Using data on medical malpractice suits brought since 1991, researchers Benjamin Ho and Elaine Liu analyzed the state-by-state changes in malpractice closed claims frequency and compensation payout before and after the passage of apology laws.

They found that these laws did not have a significant impact in average settlement payments in cases for minor injuries, but they did decrease the average payments in cases dealing with significant and permanent injuries. In the short run, researchers found the law increased the number of resolved cases. Ho and Liu believe, however, that this increase is because apology laws reduce the amount of time until settlement in formerly lengthy lawsuits. They also predict fewer malpractice suits overall in the long term. That said, do they protect you and your practice?

The only states that do not have an apology law are Alabama, Alaska, Arkansas, Illinois, Kansas, Kentucky, Minnesota, Mississippi, Nevada, New Mexico, New York, Rhode Island, and Wisconsin. And if you practice medicine in a state that does have a medical malpractice apology law in place, keep in mind that the type of protected apology varies by state.

Most states have only partial apology laws, which protect against statements of compassion, commiseration, condolence, or sympathy, whereas full apology laws protect against all types. The states where full apology laws have been passed are Arizona, Colorado, Connecticut, Georgia, and South Carolina. Only in these states will statements of fault, errors, liability, or mistakes not be taken as an admission of guilt in a medical malpractice suit.

Interestingly enough, the study by Ho and Liu found no difference in the frequency of claims and total compensation payout between states with full apology laws and those with partial apology laws.

As a physician, one of the key takeaways is to be sure you understand which apologies are protected in the state where your practice is located. The popularity of this law is also a testament to both the power of an apology and every physician’s desire to be able to empathize with a patient’s suffering without compromising the viability of his or her practice. Avail yourself to patients after treatment so if their expectations aren’t met for some reason, you can understand why and provide an explanation. Doing so will improve patient relations while also protecting your practice from medical malpractice suits.