Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

Across the U.S., physicians are increasingly allowed to say “I’m sorry” without it being used as evidence against them in court. These apology laws, now on the books in 39 states and the District of Columbia, are directed at reducing the risks and the costs of litigation. Reformers, including physician and insurer groups, tend to have strong experience-based feelings that the laws work. The act of apologizing, the thinking goes, restores dignity and respect to the patient, and adds humanity and credibility to the physician, and that drains away the anger that often motivates lawsuits and high settlements. There is also some experimental evidence that suggests that apologies can work very well under some conditions to reduce both liability and damages. But, until now, the actual experience and effects of the state laws has not been well studied.

A new report on research conducted by law and management professors from the University of Alabama and Vanderbilt appears in the Stanford Law Review (McMichael, Van Horn, & Viscusi, 2019). What sets this study apart is the data set. The team found a large medical insurer who insures more than 90 percent of surgeon and non-surgeon physicians in a given specialty. (Neither the insurance company nor the specialty is revealed). Examining these doctors over an eight-year period (a total of 75,000 physician-years), they looked at all suit and non-suit claims against these doctors. That form of data represents the “gold standard” in this context, because it includes information — non-payments, actual dollar amounts (not ranges), and payments designed to strategically avoid reporting to the National Physicians’ Database (NPDB) — that provides full access to information that is usually proprietary. Applying a regression analysis to this data, and controlling for a variety of other factors, the research reached a solid conclusion on apology laws: Sorry, but they don’t work. Surgeons are not helped by the laws, and non-surgeons are more likely to pay, and to pay more, as a result of apology laws. Both defense costs and the total costs of litigation are increased. “Overall, our findings indicate that on balance, apology laws increase rather than limit medical malpractice liability risk.” In this post, I’ll take a look at what that means.

Why Would Apology Laws Increase Lawsuits? 

The study looked at a data set including both surgeons and non-surgeons in a given specialty. For the surgeons, it turns out the laws don’t help: No decrease in claims or costs based on the apology law. But for non-surgeons, there was a clear increase in both claims and costs as a result of the laws allowing inadmissible physician apologies.

So why would a law encouraging apologies lead to more suits, particularly for non-surgeons? According to the team, the answer comes down to asymmetrical knowledge: The physician often knows more than the patient about the source of potential errors. The apology, however, alerts the patient to the possibility of error and, as a result, increases the chances of litigation. The authors explain, “an 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.” They continue, “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.”

If this is the explanation, it makes sense that the asymmetry is greater in non-surgical contexts. In many cases, a surgical error (e.g., the sponge left in place) is obvious, but an error in non-surgical care (e.g., failure to refer a case to a specialist) is less obvious and less likely to be known by the patient. So if an apology is a “heads up” on possible error, then that warning would matter more in a non-surgical context.

What is the Right Way to Apologize? 

The study looked at the isolated effect of apology laws and concluded, “Simply being allowed to apologize is not enough to reduce malpractice liability risks.” So the main implication is that physicians, defense attorneys, and insurers should not count on the simple ability to say “I’m sorry” by itself. 

As the study authors acknowledge, their results do not undercut the effectiveness of hospital-based programs that are designed to encourage and facilitate candor by the hospital and physician after adverse outcomes. When these sorts of programs are studied, they generally show high levels of effectiveness. For example, a study of the University of Michigan Health System found that its program led to a 45 percent decrease in average lawsuit costs.

So why would these programs reduce litigation risks if the apology laws themselves are ineffective or counterproductive? There are a couple of reasons.

First, the apology laws, by and large, focus on “partial” and not “full” apologies. Of the 39 states with apology laws, only five states have “full” apology laws protecting statements of fault, error, or liability. The rest — 34 states and D.C. — have “partial” apology laws which protect statements of condolence or sympathy, but not statements that admit liability or error. So the study is mostly looking at the effects of laws allowing a partial apology.

As we have written in the past, an apology has four components that can be remembered as “The Four R’s.”

    • Responsibility. I did it. 
    • Remorse. And I feel bad about it.
    • Repair. So I’ll fix it.
    • Reform. And I won’t let it happen again. 

An apology that includes all four element is more likely to be seen as an apology and more likely be too effective. But most of the state apology laws only protect that second step and not the other three. It is easy to see how that would be counterproductive. As the authors explain, “If an apology law protects only statements of sympathy, physicians may not be able to fully explain the nature of a particular medical error. If this is the case, then patients may not perceive an apology as sincere, which may provoke rather than assuage anger.”

There is a second reason why this research isn’t a reason to discount programs promoting greater candor: It looks at apologies alone and not at all of the other efforts taken in conjunction with apologies. Addressing the question of why hospital specific programs tend to succeed, the authors note, “The answer almost certainly lies in training. Physicians in the disclosure programs that have been studied likely benefitted from being trained on when to apologize and what to say when apologizing.” When physicians receive training on how and when to apologize, and when that apology happens in the context of other disclosure programs, and in a setting where other services are being provided to injured plaintiffs, it is understandable why that would work better.

So the implication for legislation is to not assume that apology laws alone are doing what they’re intended to do. Maybe the laws should be kept on the books and maybe they should be expanded in more states to allow for complete apologies. But the main emphasis, the authors suggest, should be on creating incentives for hospitals to adapt full disclosure programs, which may include inadmissible apologies but which go beyond them.

For doctors and attorneys, the bottom line implication is, don’t place faith in an apology by itself. The attitude that, “I may as well try it because it is inadmissible and therefore can’t hurt,” is not bourn out by this research. It can hurt. But, when there is a good reason for an admission, and when a full apology can be delivered in the context of other means of supporting an injured plaintiff, it can still be a good idea.

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Other Posts on Apologies: 

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McMichael, B. J., Van Horn, R. L., & Viscusi, W. K. (2016). Sorry is never enough: The effect of state apology laws on medical malpractice liability risk. Available at SSRN 2883693.

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