Laws that allow doctors to apologize for medical mistakes without the risk of increasing their legal liability do not lower the number of medical malpractice lawsuits, according to researchers at Tennessee’s Vanderbilt University.
Will Increased Communication Prevent Medical Negligence Claims?
Today, 32 states and the District of Columbia have enacted “apology laws,” which make apologies from doctors after adverse medical events inadmissible as evidence in civil cases. The strategy has become a pillar of many “tort reform” campaigns, which frame medical malpractice litigation as a crisis, one that drives up insurance premiums and encourages “defensive medicine.”
The evidence to support these claims is dubious. As we wrote in a previous article, many experts say that malpractice lawsuits, along with malpractice insurance premiums, are under control. In fact, statistics from a major malpractice insurer, the Doctors Company, suggest that the premiums paid by doctors are now at their lowest level of the last 16 years. Nevertheless, “tort reform” has become a rallying cry for conservative politicians, including President Trump’s new Secretary of Health and Human Services Tom Price.
Past Tort Reform Efforts Look To Control Damages
Most previous efforts at tort reform have focused on limiting the damages available to patients in civil court, on the reasoning that lower possible rewards will make all but the most severe lawsuits unfeasible. Apology laws, which have become increasingly popular over the last 15 years, focus instead on what can and cannot be used by plaintiffs in court. In most jurisdictions, the laws change a state’s rules of evidence, making statements of apology, condolences or sympathy inadmissible at trial. Some states also bar explicit admissions of liability or negligence from being submitted as evidence against a doctor, but this increased protection is comparatively rare.
The point, very briefly, is to increase communication between doctors, patients and the families of patients. Beyond pursuing compensation, many patients file medical malpractice lawsuits for deep emotional reasons. Anger, a desire for justice to be done and a hope that similar injuries will not befall future patients all play a part in the decision to file suit. Advocates for apology laws reason that increasing the chances for compassionate communication – by protecting physician disclosures legally – will diffuse some of the anger felt by injured patients.
Evidence Laws Increase Litigation Against Physicians
But as Benjamin McMichael and his colleagues at Vanderbilt University have found, state apology laws do the exact opposite. Analyzing a trove of malpractice insurer data, the economists discovered that apology laws actually appeared to increase the chances of a medical malpractice lawsuits for physicians who don’t regularly perform surgery. The existence of an apology made no difference for surgeons. The study, Sorry is Never Enough: The Effect of State Apology Laws on Medical Malpractice Liability Risk, was published Saturday, December 10, 2016.
While state lawmakers may find these results perplexing, McMichael provided a fairly simple explanation in his interview with Wisconsin’s Madison – St. Clair Record. When doctors apologize to patients for medical errors, they’re letting people know that an error occurred. Without an apology, there’s no guarantee that an injured patient will ever find out that mistakes were made. And while apology laws may prevent patients from using a doctor’s apology as evidence, they don’t prevent patients from looking into other sources of evidence. In effect, the state laws are working to tip patients off to the possibility of a malpractice case.
As Part Of Robust System, Apology Could Still Work
As McMichael suggests, it might not be the idea of physician disclosure that’s the problem here. Several large hospital systems, including the hospitals at the University of Michigan, have established rigorous systems to manage doctor error disclosure in which apologies are only one part of the equation. Michigan’s framework, for example, also institutes peer review panels to look over reports of medical mistakes and, if the experts believe that a doctor’s care was unreasonable, the hospital will offer injured patients a quick and fair settlement.
The idea in Michigan, as in similar systems set up at Stanford University and Beth Israel in Boston, is to head off medical malpractice litigation before it begins. That doesn’t always mean that the hospitals pay out, but at least they’ve taken a pro-active approach to the problem of medical errors. State law, on the other hand, has focused largely on defensive matters, allowing physicians to admit to mistakes but sidestep legal responsibility.
