Are you admitting malpractice if you apologize to a patient?
Hospitals in Pennsylvania, Kentucky, and Michigan have found that sincere apologies and effective error disclosure programs reduce malpractice payouts and lead to faster settlements.16 As some plaintiffs’ lawyers point out, being honest and forthright and fixing the injured parties’ problems can quickly defuse a lawsuit. One attorney explained things this way: “We never sue the nice, contrite doctors. Their patients never call our offices. But the doctors who are poor communicators and abandon their patients get sued all the time. Their patients come to our offices looking for answers.”17
Apology laws: Protection from your own words
The belief that apologies by physicians can help patients emotionally and reduce malpractice litigation has led state legislatures to enact so-called apology laws in many jurisdictions in the United States.18 The general point of these rules and statutes is to prevent later use of doctors’ words in litigation. States differ substantially in the scope and type of protection that their laws offer. Some states prohibit doctors’ apologies for adverse outcomes from being used in litigation to prove negligence, while others only exclude expressions of sympathy or offers to pay for corrective treatment. Selected language from several states’ apology laws appears in the Table.19-23
Do apology laws work? Recent research by economists Ho and Liu indicates that they do. Comparing payouts in states with and without apology laws, they conclude that “apology laws have the greatest reduction in average payment size and settlement time in cases involving more severe patient outcomes,”13 such as obstetrics and anesthesia cases, cases that involve infants, and cases in which physicians improperly manage or fail to properly diagnose an illness.24
The practical impact of apologizing for psychiatric malpractice cases is unclear, but forensic psychiatrists Marilyn Price and Patricia Recupero believe that, following some unexpected outcomes, thoughtful expressions of sympathy, regret, and—if the outcome resulted from an error—apologies may be appropriate. Price and Recupero caution that such conversations should occur as part of broader programs that investigate unanticipated adverse events and provide education and coaching about appropriate ways to make disclosures. Clinicians also should consult with legal counsel, risk management officers, and liability insurance carriers before initiating such disclosures.25
Bottom Line
Apologizing for medical errors may mitigate malpractice liability and can help injured parties and physicians feel better. Whether plaintiffs can use apologies as evidence of malpractice depends on state laws and rules of evidence. Before you apologize for an unanticipated outcome, discuss the situation with your legal counsel, risk management officers, and insurers.
Disclosure
Dr. Mossman reports no financial relationship with any company whose products are mentioned in this article or with manufacturers of competing products.
Featured Audio
Douglas Mossman, MD, talks about who you should consult before apologizing to a patient for a bad outcome. Dr. Mossman is Professor of Clinical Psychiatry and Director, Division of Forensic Psychiatry, University of Cincinnati College of Medicine, Cincinnati, Ohio.
