Executive Summary
A March 2014 ruling by Utah’s Court of Appeals distinguishes between apologies that merely express sympathy for an adverse outcome or complication and those that acknowledge fault.
State laws vary as to whether they protect an expression of sympathy, an explanation of what happened, or an expression of fault.
The physician’s statement "we messed up" was interpreted as a statement of fault that was not protected by the state’s apology law.
A partial apology could be seen as insincere, thus increasing the distrust between patient and doctor.
(Editor’s Note: This is the first story in a two-part series on apology laws. This month, we report on how a recent court ruling distinguishes between apologies that express sympathy and those that acknowledge fault. Next month, we’ll cover how a physician’s apology could affect the outcome of a malpractice suit. )
If a physician says "I’m so sorry for what happened to you," he or she might have legal protection under a particular state’s "apology" law. However, that protection might not be the case if the physician adds a statement such as, "And I apologize for giving you the wrong medication."
A March 2014 ruling by Utah’s Court of Appeals has made a distinction between apologies that acknowledge that a healthcare provider was to blame for a complication or adverse outcome and apologies that merely express sympathy or explain the events causing a patient’s injury.1
Here, a physician told the patient "I’m really sorry. There was kind of a complication. We messed up...." The portion of the conversation where the physician stated "we messed up," was interpreted by the Utah appeals court as a statement of fault that was not protected by the state’s apology law.
"Nonetheless, the healthcare provider prevailed in the case for other reasons," says Anna C. Mastroianni, JD, MPH, a professor at the University of Washington School of Law in Seattle.
A 2010 analysis of "apology" and "disclosure" laws in 34 states and the District of Columbia found that most of the laws have major shortcomings. According to the researchers, these shortcomings could weaken the laws’ impact on malpractice suits and actually discourage comprehensive disclosures and apologies.2 "We predicted just this — that the I’m sorry’ laws would reveal their weaknesses when put to the reality test," says Mastroianni, the study’s lead author.
The March 2014 ruling reveals a disconnect between the way physicians see apologies and how lawyers and judges will interpret the laws protecting apology, says Mastroianni.
"My concern is that this case will actually end up discouraging physician apologies following medical error," she adds.
Physicians need to be aware that state laws vary on whether they protect an expression of sympathy, an explanation of what happened, and an expression of fault, advises Mastroianni. "Even if these three aspects of an apology are expressed in one sentence, the legal system may only protect the expression of sympathy and then allow the other aspects to support an injured patient’s malpractice case," says Mastroianni.
The wording of some apology laws covers all statements, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence. However, "some states use the same wording, but with the word fault’ deliberately removed," says Benjamin Ho, PhD, assistant professor of economics at Vassar College in Poughkeepsie, NY, and the study’s co-author.
By clarifying the distinction between "full" and "partial" apologies, says Ho, the Utah ruling "essentially makes partial apologies less costly, making them both easier and less sincere."
The 2011 analysis, however, found no statistical difference in malpractice claims between states that that had full apology laws and states with partial apology laws.3 "This suggests that this distinction may be too small to affect patients and doctors in their litigation decisions," says Ho.
On the other hand, a partial apology could be seen as insincere, thus increasing the distrust between patient and doctor. "One concern regarding apology laws that prompted our study is that these laws may make apologies feel even more insincere to the patient," says Ho.
References
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Lawrence v. Mountainstar Healthcare, —- P.3d ——, 2014 WL 685594 (Utah App. 2014)
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Mastroianni AC, Mello MM, Sommer S, et al. The flaws in state apology’ and disclosure’ laws dilute their intended impact on malpractice suits. Health Affairs 2010; 29(9):1611-1619.
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Ho B, Liu E. Does sorry work? The impact of apology laws on medical malpractice. J Risk Uncertain 2011; 43(2):141-167.
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Benjamin Ho, PhD, Assistant Professor of Economics, Vassar College, Poughkeepsie, NY. Phone: (650) 867-8270. Email: [email protected].
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Anna C. Mastroianni, JD, MPH, Professor, School of Law, University of Washington, Seattle. E-mail: [email protected].
