Do “I’m Sorry” Laws Offer Enough Protection?

As mentioned above, the Veterans Administration and the University of Michigan have instituted self-disclosure policies that involve an explanation if an error occurred, an apology, a settlement offer, and a systemic approach of quality improvement to prevent that error from happening again in the future. Both have stated that this approach has decreased the number of legal claims against the institutions. It seems that this type of system should be protected by all state laws and be the standard for medical error disclosure and the quality improvement needed so that an error never happens again. However, an article in the Stanford Law Review states, “Once a patient has been made aware that the physician has committed a medical error, the patient’s incentive to pursue a claim may increase even though the apology itself cannot be introduced as evidence.”⁴ Similarly, an article in the Lewis and Clark Law Review states, “[Their research] shows that while apology laws may reduce the frequency and size of malpractice claims as intended, they may also have a perverse effect on patients’ propensity to litigate … an apology could alert the patient to that malpractice and encourage the filing of a claim.”⁵

As a practicing physician out of residency for more than 25 years, I must admit it feels good to be able to apologize to families when an unexpected tragedy occurs during the course of medical care, even when I don’t feel I am at fault. Being able to do that in my professional life mirrors what I strive to do in my private life and creates less internal conflict for me in these difficult situations. It seems unclear that apology and offers of settlement alone decrease litigation, but coupled with a system-based strong root-cause analysis and quality improvement program driving harm to zero, it can decrease all causes of system errors and malpractice.  Plus-circle

Dr. Naber is associate chief medical officer at UC Health, Drake Hospital in Cincinnati and associate professor of emergency medicine and medical director of UR/CDI at University of Cincinnati Medical Center.

References

1. Smith ML. I’m sorry laws: what’s a respiratory therapist’s apology worth? The Health Law Firm website.. Accessed Oct. 8, 2021.
2. Hicks J, McCray C. When and where to say “I’m sorry.” CLM Magazine website.  Accessed Oct. 8, 2021.
3. Disclosure of Medical Errors. ACEP website. Accessed Oct. 15, 2021.
4. McMichael BJ, Van Horn RL, Viscusi WK. “Sorry” is never enough: how state apology laws fail to reduce medical malpractice liability risk. Stanford Law Rev. 2019;71(2):341-409.
5. McMichael BJ. The failure of sorry: an empirical evaluation of apology laws, health care, and medical malpractice. Lewis & Clark L Rev. 2018;22(4):1199-1281.