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(Editor’s Note: This is the second story in a two-part series on apology laws. This month, we report on how a physician’s apology could affect the outcome of a malpractice suit. Last month, we covered a recent court ruling distinguishing between apologies that express sympathy and those that acknowledge fault.)
Evidence shows that "apology" laws "have done much more good than harm," says Benjamin Ho, PhD, assistant professor of economics at Vassar College in Poughkeepsie, NY. A 2011 analysis estimated that apologizing to a patient would reduce the average medical malpractice payout by $31,000.1
"States that passed such laws saw settlement speeds increase by 20%, especially in the most severe cases, where settlement amounts decreased by 14% to 17%," reports Ho, one of the study’s authors.
The biggest predictor of whether a patient sues is the relationship between doctor and patient, according to Ho, "and apologies go a long way in restoring trust in that relationship." On the other hand, apologies also might alert the patient to the nature of the error. "Therefore, apologies could increase the likelihood the patient seeks legal counsel," acknowledges Ho.
The perception that an apology will cause a patient to sue is "outdated and inaccurate," argues Doug Wojcieszak, founder of Sorry Works!, a Glen Carbon, IL-based company that trains healthcare providers in disclosure. The physician’s apology has the potential, through an admission of guilt, to be used by an injured plaintiff as evidence to support two elements of a malpractice case: breach and causation. "A doctor should not be admitting fault until a review has proven a medical error," says Wojcieszak, and instead, a physician should make only empathetic statements such as, "I am sorry this happened. We will be doing a review and report back to you."
"Every doctor since medical school has been told if they apologize it will be used against him," adds Wojcieszak. "But if an apology is all the plaintiff has to hang his hat on, that’s not much of a case."
Most state "apology laws" cover only expressions of empathy or sympathy, though some states, including Connecticut, Georgia, South Carolina, and Colorado, go further and include expressions of liability. However, "some of the best disclosure programs operate in a state with no apology law in the books," says Wojcieszak.
"There is confusion in the field about what the laws cover," he says. "But whatever form they are in, they will encourage doctors to disclose."
Many plaintiff attorneys, in fact, would be reluctant to make an issue out of the fact that a physician apologized to a patient, he adds. In some cases, defense counsel want to call attention to the apology. "They say, I don’t care what the laws say, I’m going to get this into the record before the jury because it’s going to humanize my client. It’s going to make my client look good,’" Wojcieszak says.
When selling their practices to hospital systems, physicians should inquire about disclosure practices, he advises. "If three competing systems all want to buy a practice, they’re all going to pay about the same," says Wojcieszak. Physicians can differentiate between them by asking questions such as, "Do you have a disclosure program? How does it work? How will you support me, my colleagues, and my patient and family post-event?"
Physicians typically assume, sometimes wrongly, that insurance companies and hospital risk managers are against physicians apologizing to patients.
"So many doctors just work off what they heard 20 years ago," Wojcieszak says. "Don’t make assumptions. The time to find out about this is now, rather than when an adverse event happens."