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

The past thirty years have witnessed an “apology revolution” in medical practice. Prior to the 1980s, the prevailing approach to medical errors in clinical care favored concealment: If patients or their survivors did not discover medical mistakes on their own through legal discovery and litigation processes, self-interest discouraged physicians from apologizing for such blunders.  The fear was that a doctor’s apology might draw attention to an otherwise unrecognized error and lead to malpractice claims. Needless to say, this secrecy did little to improve either trust in the medical system or the quality of care.

Starting with Massachusetts in 1986, thirty-nine states and the District of Columbia have passed statutes that encourage physicians to apologize by preventing such apologies (and often any related admissions) from admissibility as evidence in court. The logic behind these laws is that if patients or families receive immediate expressions of remorse after errors that lead to negative outcomes, they will prove less likely to sue. These laws gained considerable traction after the University of Michigan adopted a model that favored full disclosure and apologies in 2002, resulting in a significant reduction in both malpractice claims and legal costs.  Within one generation, the prevailing wisdom had shifted 180 degrees. By the late 2000s, the reigning wisdom maintained that waiting for patients to discover errors on their own—and to do so without the mollifying effect of an honest apology—led to increased litigation.

More recent data has called this claim into question.  A trio of Vanderbilt University researchers led by Benjamin McMichael investigated whether states that passed apology laws actually did see a drop in lawsuits or payouts. The results proved surprising. Their article, “Sorry is Never Enough,” published this winter in the Stanford Law Review, found that in one specialty, the passage of apology laws led both to increased likelihood of lawsuits and to increased payouts per claim—certainly not an outcome legislators were hoping for (1). They were also able to separate the data for surgeons and non-surgeons. It turned out that apology laws had minimal effect on surgery-related lawsuits, possibly because surgical errors would have been harder to conceal with or without apologies. The increase was entirely due to elevated claims and payouts against non-surgeons, who presumably alerted patients and families to errors that might otherwise have gone unknown. One caveat is worth noting: The researchers had no way of knowing in which specific cases apologies had in fact occurred.

The initial reaction to the McMichael study has been to question, or even dismiss, the efficacy of apology laws. Clearly, if the goal is to reduce overall litigation, they have missed their mark.  But malpractice serves a valuable purpose: Helping to compensate victims of negligence. The goal of malpractice reform should not be to stymie legitimate lawsuits, but rather to ward off frivolous or unjust ones. What the McMichael study cannot tell us—and this is an unavoidable but nonetheless major shortcoming—is whether the lawsuits that proceeded after the passage of apologies law are similar to the lawsuits that would have advanced without them. It is perfectly plausible that the effect of apology laws is to improve the quality of claims, fostering meritorious lawsuits in which payouts should occur. As an insurance carrier, this result may prove no more desirable; as an ethicist, it makes all the difference.

Of course, apologies may serve other purposes beyond deterring litigation. Even if they increase the risk of payouts, they are still the right thing to do. The American Medical Association’s Code of Medical Ethics requires full disclosure of medical errors—a principle too often honored in the breach. Five states—Florida, Nevada, New Jersey, Pennsylvania and Vermont—now require hospitals to disclose adverse events (2). The reason the University of Michigan Health System may have been so effective in reducing litigation and payouts is that it adopted a comprehensive model of transparency known as “disclose, apologize and offer,” which includes compensation to victims of medical errors. In other words, apologizing may yet prove effective if done as part of a comprehensive program.

An ideal system of malpractice compensation would likely operate on a no fault model, similar to workers’ comp, that spread costs among all providers and ultimately among all patients paying for healthcare. Unfortunately, as long as lawyers have skin in the game, that day stands a long way off.  Until that happens, sorry may not be enough, but it is certainly a good start. 

References

1. McMichael BJ, Van Horn RL, Viscusi WK. “Sorry” Is Never Enough: How State Apology Laws Fail to Reduce Medical Malpractice Liability Risk. Stanford Law Rev. 2019 Feb;71(2):341-409.
2. Bender FF. “I’m Sorry” Laws and Medical Liability.  Virtual Mentor. 2007;9(4):300-304.