“I’m Sorry” Laws by State

Those who live in Arizona, Colorado, Connecticut, Georgia, Iowa, Louisiana, Montana, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, Vermont, West Virginia, Wisconsin, and Wyoming as well as Washington, D.C., are covered by the most comprehensive apology laws (see Figure 1). I practice primarily in the State of Ohio, where Ohio Revised Code Section 2317.43 reads:

(1) In any civil action brought by an alleged victim of an unanticipated outcome of medical care … any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, error, fault, or a general sense of benevolence that are made by a health care provider … that relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the result of the unanticipated outcome of medical care are inadmissible as evidence of an admission of liability or as evidence of an admission against interest. [emphasis added]

Fortunately, with this broad protection, practitioners in Ohio can apologize with little fear that their words will be used against them. I have said I am sorry to many families over the years for unanticipated medical tragedies; to this day, I still feel it was the right thing to do. As proponents of the University of Michigan model would say, an open and honest discussion after these events has been shown to decrease the frustration felt by those affected; decrease the frequency of litigation; and, when harmed, decrease the settlement amounts.

The partial protection states include Alaska, Delaware, Hawaii, Idaho, Indiana, Maine, Massachusetts, Michigan, Missouri, Maryland, Nebraska, New Hampshire, Pennsylvania, South Dakota, Utah and Virginia. If you practice in these areas, you have protection from saying sorry but not if you admit guilt. If you admit wrongdoing, those statements can be admissible in court. The Michigan law, MCL Section 600.2155, reads:

A statement, writing, or action that expresses sympathy, compassion, commiseration, or a general sense of benevolence relating to the pain, suffering, or death of an individual … is inadmissible as evidence of an admission of liability in an action for medical malpractice.

This section does not apply to a statement of fault, negligence, or culpable conduct … [emphasis added]

If I was a practitioner in Michigan, I could still say I am sorry for the unanticipated medical outcome, but if I also said, “It was my fault,” that could be used against me in any civil legal proceedings. The plaintiff’s attorney would question me around the admission of fault in a deposition and then at trial if needed. The University of Michigan exists in this legal system and feels its open and honest approach helps with families’ need for transparency and the need for information on what happened to their loved one. There is some debate, however, on whether the University of Michigan’s strong performance and quality improvement program, its approach to harm, or both have decreased the actual number of cases litigated.⁴

Some states take a more general approach to apology laws; those include California, Florida, Massachusetts, Tennessee, Texas, and Washington. These states are trying to protect the human need to apologize in much broader circumstances outside of health care. The Texas law, Section 18.061, reads, in part:

Communications of Sympathy (a) A court in a civil action may not admit a communication that: (1) expresses sympathy or a general sense of benevolence relating to the pain, suffering, or death of an individual in an accident, (2) is made to the individual or a person related to the individual … a communication, including an excited utterance … which includes … statements concerning negligence … pertaining to an accident or event, is admissible to prove liability of the communicator. [emphasis added]

Notice that the act of apology or expression of sympathy after an accident is protected here, but any admission of fault or negligence is not protected and admissible to prove liability. California’s law and wording are very similar to Texas’s; however, California specifically excludes the admissibility of any statement related to fault in an accident. Remember, these laws are general apology laws, not specific for health care, and their applicability to health care accidents will vary by state.

There are 12 states left that do not have formal apology laws: Alabama, Arkansas, Illinois, Kansas, Kentucky, Minnesota, Mississippi, New Jersey, Nevada, New Mexico, New York, and Rhode Island. If you practice in these states, there is no partial or full protection for apologies and admissions of fault. This lack of protection could lead to decreased communication between patients, families, doctors, and health systems. Families and patients may be compelled to seek legal counsel more often and initiate litigation to get the answers they need for their questions. Without adequate protection in these states, it would be very challenging, if not impossible, to follow the ACEP Policy Statement on Disclosure of Medical Errors.³ It states, in part:

If, after a careful review of all available relevant information, emergency physicians determine that a medical error has occurred during their care of a patient in the ED, they or appropriate designee should inform the patient in a timely manner … and provide information about the error and its consequences following institutional and practice group policies and considering applicable state statures on this subject.