EXECUTIVE SUMMARY

The “I’m Sorry” movement may not be lowering the risk of malpractice claims. The approach may still be worthwhile for other reasons.

  • The authors of a recent analysis found that state apology laws may not be having the desired effect.
  • Non-surgical patients may be unaware of an error until someone apologizes.
  • Know the details of the apology law in your state.

The “I’m Sorry” movement has gained steam in the last few years. Risk managers have been encouraging physicians to show their regret and concern with patients after adverse events — not only because it is the right thing to do, but also in hopes of reducing potential liability.

Patients often sue because they think their doctors do not care about what happened to them. The reasoning was that a carefully worded apology would reduce the risk of a lawsuit and reduce the potential payout. Many state legislatures passed laws prohibiting plaintiffs from using a clinician’s apology against them in a malpractice case.

Thirty-six states passed apology laws, according to the Sorry Works! organization, which has promoted apologies after adverse events. The organization notes that disclosure still can be practiced effectively without apology legislation, saying that empathizing after an event — without admitting fault — will not land a physician in trouble. (For more on Sorry Works! and the list of states with apology laws, visit: https://bit.ly/2YOk4IZ.)

Do Apology Laws Work?

But after years of trying that approach, is it really working out that way?

Not necessarily, although that does not mean the apology approach is not worthwhile. A recent report in the Stanford Law Review from researchers at Vanderbilt University in Nashville, TN, questions the value of apology laws. The researchers used proprietary insurance data to assess the impact of I’m Sorry legislation, and found the results were not encouraging.

The researchers concluded that for surgeons, whose patients are more aware of the risks than other types of patients, “apology laws do not have a substantial effect on the probability that a physician will face a claim or the average payment made to resolve a claim. For non-surgeons, we find that apology laws increase the probability of facing a lawsuit and increase the average payment made to resolve a claim, a finding which is consistent with the presence of asymmetric information. Overall, our findings indicate that on balance, apology laws increase rather than limit medical malpractice liability risk.”

The authors theorized that surgical adverse events and errors can be more apparent to the patient, whereas non-surgical patients may not realize an error occurred until the physician apologizes, partly because the apology law encouraged him or her to do so. (An abstract of the report is available online at: https://stanford.io/2XWWSLo.)

Minimal Benefits Seen

Apology laws have minimally affected malpractice litigation, says Alex J. Keoskey, JD, an attorney with DeCotiis, FitzPatrick, Cole & Giblin in Teaneck, NJ.

“Legislation designed to make apologies of physicians inadmissible in subsequent civil malpractice suits have limited value,” Keoskey says. “Most medical malpractice lawsuits are driven by bad outcomes coupled with zealous plaintiff’s lawyers, not whether or not the practitioner offered an apology.”

A more useful effort should focus on establishing guidelines regarding which adverse events should be accompanied by a clear admission of fault, such as surgery on the wrong limb or leaving surgical instruments in the body, and which should not, Keoskey says.

“While it is certainly true that physicians who demonstrate empathy, caring, and even sorrow for adverse outcomes can help heal any residual anger or shock on the part of a family member, a clear admission of fault where the medical quality of care may be defensible makes little sense from a risk management perspective,” he says.

Keoskey says risk managers should not sell apology legislation as a cure-all for any liability that may derive from admitting fault relating to adverse outcomes. It is helpful to educate clinical practitioners regarding how and when to show sympathy, remorse, or in some rare cases, even to apologize, he says.

“However, such guidelines should never be included in writing within policy and procedures of the healthcare facility,” he cautions.

It is important to distinguish between expressing concern and admitting to error, Keoskey says. Saying, “I am so sorry” whenever an adverse outcome occurs is a normal and helpful response to anyone suffering grief or anguish over death or a debilitating event involving a loved one, he says. That should not be discouraged.

For example, “I just heard that your mom passed away. I’m so sorry,” does not constitute an admission of fault, Keoskey says. Neither should any apology offered to family members after unsuccessful surgery or procedure. Stating, “Unfortunately, the surgery was unsuccessful. Your mom didn’t make it. I am so sorry for your family’s loss,” is distinct from “I didn’t monitor her blood loss like I should have. I made a mistake. I am so very sorry.”

“Even if the admission is not admissible in court because of an apology law, the family member will never forget it. Such statements will render them more likely to file suit, not less,” he says.

Laws Not Meant to Inhibit Lawsuits

In reviewing the effects of apology legislation on malpractice claims, it is important to remember that the laws were never meant to actually protect physicians from claims, says Carol Michel, JD, partner with Weinberg Wheeler law firm in Atlanta. The legislation was passed because physicians were so concerned about litigation and liability that they were reluctant to apologize or engage in a normal interaction in which they expressed sorrow over a patient’s outcome, she says.

States passed laws prohibiting those conversations from being used against physicians in court, but they were not intended to inhibit any reasonable claims of malpractice, she explains. The laws have been successful if they allowed physicians to hold the candid conversations they wanted but feared, she says.

“In my own experience, I certainly have the fact of early, candid conversations with patients and their family helping to either address a potential claim before the claim was actually made, or creating an environment of trust so that when a claim was made there wasn’t the hostility and anger,” Michel says. “We were able to, pre-lawsuit, negotiate the claim on a much better footing.”

Physicians believe they should hold those conversations but in years past were dissuaded by risk managers who told them to say nothing after a bad outcome, or established rigid prohibitions on certain comments, including “I’m sorry.” The I’m Sorry movement and the legislation in some states changed that attitude, but Michel says the true aim of the laws was to simply let doctors speak honestly to their patients.

“The laws are just evidentiary privileges rather than any immunity from claims or litigation,” Michel says. “If you have a conversation with the patient or family, there are parameters on what they can get into evidence afterward. The legislation doesn’t impede the plaintiff’s rights to pursue a malpractice case in any other way.”

Risk managers should continue to encourage open and honest conversations with patients and family members, Michel says, but also remind physicians to do so carefully. For instance, do not rush to start that conversation before all facts are known.

“The consensus now is that it is OK to empathize with the patients and family, to acknowledge their concerns, to look into the incident further, and provide them with the information you can,” she says. “You just don’t want to start out the conversation with ‘Oh my god, we completely screwed up and everything is our fault.’ The goal has always been to show sympathy and provide the information you have, but don’t go beyond the factual information you have.”

Michel notes that she often sees plaintiffs’ attorneys filing motions to keep physician apologies out of the case, rather than trying to get them admitted as evidence.

“Generally, it’s because the plaintiffs’ bar don’t want the physician coming across as compassionate and caring,” Michel says. “They don’t want anyone to know that the physician showed concern and regret, that he or she didn’t just walk away without any thought for the patient.”

Effects Differ by State

The research into the effect of state laws found differences from state to state, notes Elizabeth L.B. Greene, JD, partner with the Mirick O’Connell law firm in Worcester, MA. That likely is because the laws are written differently, with some covering only the apology itself and others covering additional statements and explanations.

“I think that affects the effectiveness of the laws, but there’s also the human impact to consider,” Greene says. “It may be that the laws have had greater impact on human factor side, the effect on patients and physicians when they are allowed to have that conversation, than any real impact on malpractice litigation.”

Risk managers should understand the apology laws in their own states and explain the specific allowances and limitations, Greene says.

For example, Massachusetts law states that “all statements, affirmations, gestures, activities, conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or general sense of concern” will be inadmissible unless the speaker or a defense expert witness makes a contradictory or inconsistent statement as to material facts or opinion that was previously stated.

That means that if there is a contradictory statement, all the protected information is admissible, Greene says. Physicians in that state must be careful not to make statements that later prove untrue, she says.

“Risk managers who are counseling physicians dealing with adverse outcomes should have an understanding of the law in your state on apology and/or disclosure, because they are not the same. The specific advice you provide in any situation may be dependent on the details of that law,” she says.

Avoid Taking Responsibility Too Early

Providers should be mindful that their involvement in the case may not have determined the outcome, so they should avoid rushing to take blame, Greene says. Physicians may be devastated by an adverse outcome and feel great guilt, but in many cases an investigation will reveal that they were not the cause, she says.

Physicians should be counseled not to jump to conclusions and make statements to the patient or family that suggest an error by the physician is to blame, or direct the physician to take all responsibility as captain of the ship, Greene says. Physicians should tell patients and family that certain information is known but other information will become available later, she suggests. Avoid trying to fill in the blanks or make assumptions about what happened.

“It is a good idea to provide some training and guidance on how to handle adverse outcomes, a toolbox of skills that they can use when this happens,” Greene says. “We also need to make counseling available to the physician in the moment when an incident occurs, and before they talk to the patient. Patients are hanging on to every word that is said and these conversations are very meaningful, so physicians can provide accurate and transparent information.”

SOURCES

  • Elizabeth L.B. Greene, JD, Partner, Mirick O’Connell, Worcester, MA. Phone: (508) 860-1514. Email: egreene@mirickoconnell.com.
  • Alex J. Keoskey, JD, DeCotiis, FitzPatrick, Cole & Giblin, Teaneck, NJ. Phone: (201) 347-2107. Email: akeoskey@decotislaw.com.
  • Carol Michel, JD, Partner, Weinberg Wheeler, Atlanta. Phone: (404) 832-9510. Email: cmichel@wwhgd.com.