Jacob M. Appel, M.D., J.D.

One of the few facts about medical errors that physicians, trial lawyers and patients can all agree upon is that there are too many of them.  In the well-publicized Harvard Medical Malpractice Study (1991), researchers discovered that “adverse events due to negligence” occurred during a stunning 1% of hospital admissions. The Institute of Medicine reported in 1999 that in excess of 44,000 deaths and 1,000,000 injuries each year are attributable to iatrogenic causes.  While reducing the frequency of errors must be a core goal of health care providers, nearly as important is developing a consensus regarding how to handle such incidents when they do occur. Over the past decade, a number of states—starting with Pennsylvania in 2002—have mandated that hospitals and/or providers disclose medical errors to victims. At the same time, a smaller number of states have enacted so-called “benevolent gestures” legislation that allows physicians to apologize for medical mistakes without fearing that their expressions of regret will be used against them in malpractice litigation. Massachusetts enacted the first such law in 1986; Texas followed in 1999. Multiple studies have since shown that physician apologies actually reduce litigation and payouts.

At present, thirty-six states have laws shielding some expressions of apology from use in court.  Unfortunately, most of these statutes exclude only subjective expressions of regret and not any factual admissions included in the apology.  These limitations largely undermine the efficacy of the legislation.  To use an extreme but readily understood example:  It is nearly impossible to express regret for amputating the wrong leg without simultaneously admitting that one has cut off the wrong leg.   Even more concerning, fourteen states offer “good faith” physician apologies no protections at all.  Colorado stands out as one of the few states where actual admissions of fault are protected by an evidentiary privilege.   Most large states that nominally protect apologies, such as Ohio and California, do so in a manner so narrow that physicians may in practice say very little without increasing their risk of liability.

At present, the year 2012 is shaping up to be a watershed for the “benevolent gestures” movement.   In Wisconsin, physician-turned-assemblyman Erik Severson (R-Star Prairie) is sponsoring legislation that creates a broad exclusionary privilege for admissions of regret, fault and liability.  Both the American Medical Association and the Wisconsin Medical Society have campaigned vigorously for passage.  While a similar bill was vetoed by Democratic Governor Jim Doyle in 2005, Republic Governor Scott Walker is thought to be sympathetic to the legislation.   Meanwhile, in Rhode Island, actor James Woods has spearheaded an effort to pass a “benevolent gestures” bill.   While the proposed legislation in Rhode Island is relatively narrow, and does not cover admissions of fault or liability, the legislative testimony of Woods (who settled a lawsuit against Warwick’s Kent Hospital over his brother’s death, after the hospital staff apologized) has drawn considerable national attention to the issue.   Similar legislation was recently submitted to the New York State Senate.

The purpose of “benevolent gestures” legislation is not to shield doctors from liability or to address the malpractice crisis.  Rather, it is to reduce barriers to physician apologies, because such apologies are ethically desirable and reflect the best standard of care that medicine has to offer.  The reality is that few malpractice lawsuits will ultimately hinge upon admissions made by a physician; nearly always, if a plaintiff has a plausible claim, he will be able to prove his case through other forms of evidence.   Freeing doctors up to express their regrets, and even their fault, may not serve the interests of malpractice lawyers seeking settlements.   However, unlike many proposed methods of tort reform, creating incentives for physician apologies is highly likely to further the interests of injured patients.

References

1. Brennan, TA, Leape, LL, Laird, NM, et al.  “Incidence of Adverse Events and Negligence in Hospitalized Patients — Results of the Harvard Medical Practice Study I,” N Engl J Med 324:370-376, February 1991.

2. “To Err Is Human: Building a Safer Health System,” Institute of Medicine, The National Academies Press, 2000.

3. Gallagher, TH, Studdert, D, Levinson, W. “Disclosing Harmful Medical Errors to Patients,” N Engl J Med 2007; 356:2713-2719, June 2007.

4. Jesson, LE and Knapp, PB, “Symposium: The Twenty-Fifth Anniversary Of The Minnesota Court Of Appeals: Evidence Law: My Lawyer Told Me To Say I’m Sorry: Lawyers, Doctors, And Medical Apologies,” 35 Wm. Mitchell L. Rev. 1410, 2009.

5. See e.g. Boothman, RC, Blackwell, AC, Campbell, DA, et al. “A Better Approach to Medical Malpractice Claims?  The University of Michigan Experience, Journal of Health & Life Sciences Law, Vol 2, No. 2, Jan. 2009.

6. Colo. Rev. Stat. Ann. § 13-25-135 (2003)