The Limits of Apology Laws

Abstract

The Limits of Apology Laws Rebecca Dresser (bio) During the 1990s, apology laws emerged as an initiative that could help reduce the rate of medical error. The laws are designed to reduce the liability risks associated with disclosing mistakes. Many states have laws that prevent a health care worker's expression of sympathy or regret from being used as evidence of negligence in a malpractice action. Some also exclude as evidence statements that acknowledge responsibility or fault related to an adverse patient outcome. The link between apology laws and reducing medical errors is indirect. In theory, apology laws diminish clinicians’ and administrators’ reluctance to disclose errors by dispelling their fear that a malpractice suit will follow. In turn, more openness about medical errors will encourage the systemic changes needed to improve patient safety. Improved patient safety is not the sole justification for apology laws, however. If the laws encourage physicians to disclose medical errors, then they could also advance other ethical objectives. By informing patients and families about deficiencies in patient care, physicians fulfill their fiduciary responsibilities to tell the truth and promote patients’ best interests. Disclosure gives patients the information they need to make health care and other important personal decisions. It also prevents unnecessary anxiety about what caused a health problem and allows patients to receive appropriate follow-up care. Finally, disclosure allows patients and families to be fairly compensated for further care, missed wages, and other related losses.1 Apology laws are just one component of a broader regulatory and institutional effort to pierce the traditional veil of silence about medical errors. A few states require notification of unexpected events. The Joint Commission on Accreditation of Health Care Organizations includes among its accreditation standards a requirement that hospitals inform patients about unanticipated outcomes. The National Quality Forum, an influential, standard-setting organization, has issued guidelines endorsing disclosure and prescribing implementation measures like clinician training and monitoring outcomes.2 Questionable Impact Although apology laws are popular among state legislatures, their impact on medical practice remains uncertain. Many questions arise concerning the relationship between apology laws and malpractice litigation. One question is whether apology laws confer sufficient protection. Because the majority of states exclude only expressions of sympathy, not admissions of fault, the malpractice threat could still deter most clinicians and administrators from fully disclosing a harmful error. Moreover, even excluded evidence can be useful to attorneys preparing a case against clinicians and hospitals.3 Another set of questions concerns the effect of apologies on patients and families injured by medical mistakes. Apology proponents, such as the Sorry Works! Coalition, contend that when health care workers apologize, patients and families are less likely to sue. By reducing the injured person's anger and promoting trust in physicians and health care institutions, apologies reduce the chance that the person will pursue a legal claim. Supporters cite statistics from the Veteran's Administration, the University of Michigan, and other health systems showing that full disclosure and apology programs have produced savings in litigation costs. They also say that if a malpractice case goes to court, judges and jurors will be more sympathetic to defendants who apologized.4 (Of course, if the latter claim is accurate, then clinicians and institutions will benefit if apologies are admitted into evidence, rather than excluded by apology laws.) Although it makes sense to suppose that apologies make error victims less likely to seek legal redress, some observers think that increased communication about medical errors could increase malpractice litigation. This could occur because the vast majority of patients harmed by medical errors never pursue legal claims. In many cases, patients injured due to medical errors do not know what caused their injuries. More openness about medical errors will enlighten this group, and some of them will respond by filing legal claims. Even if apologies make some injured parties less inclined to sue, they could cause a larger group of otherwise ignorant patients to pursue legal remedies. According to this theory, “[l]aws that prohibit admission of disclosures into evidence will do little to alter the outcome; disclosure's primary impact will come from the flagging function it serves for patients and their attorneys.”5 Toward a Broader...