I recently finished a medical malpractice case. It was well tried. But rarely do judges really know about the events that led up to the decision to sue. Sometimes patients with bad outcomes do not sue, and sometimes they do. Vanderbilt University Working Paper series includes a study: “Sorry Is Never Enough: The Effect of State Apology Laws on Medical Malpractice Liability Risk.” The authors are Benjamin J. McMichaela, R. Lawrence Van Hornb, & W. Kip Viscusic.
Here’s how it opens:
The traditional response to limit medical malpractice costs includes liability reforms such as caps on noneconomic damages. Another reform option, which has become popular among states over the last 15 years, is enacting laws that facilitate greater communication between patients and their providers (see Ho and Liu 2011a; 2011b). Because patients report that, in addition to seeking compensation, they sue their physicians out of anger (Vincent et al. 1994), apologies from their physicians could potentially assuage this anger and prevent some marginal suits from being filed. However, physicians are often advised to avoid apologizing to patients in order to avoid providing those patients with evidence that could be used in a lawsuit (Lamb et al. 2003).
State apology laws, which states enact to address this paradox faced by physicians, are reforms to state rules of evidence and exclude from trials statements of apology, condolence, or sympathy made by healthcare providers (sometimes only physicians) to patients. In the absence of an apology law, expressions of sympathy may generate a successful medical malpractice claim. In the presence of an apology law, physicians can more freely express sympathy without those statements being admissible in future lawsuits. Reflecting the growing popularity of apologies and communication as a malpractice mitigation strategy, the Agency for Healthcare Research and Quality (AHRQ) has developed the Communication and Optimal Resolution (CANDOR) process, which is based in part on facilitating apologies by physicians to patients. And many healthcare facilities across the country have developed specific apology and disclosure programs (see, e.g., Adams et al. 2014).
For physicians who do not regularly perform surgery, apology laws increase the probability of facing a lawsuit and increase the average payment made to resolve a claim. For surgeons, apology laws do not have a substantial effect on the probability of facing a claim or the average payment made to resolve a claim. Overall, the evidence suggests that apology laws do not effectively limit medical malpractice liability risk.
The article closes:
In general, apology laws increase the probability of malpractice lawsuits for non-surgeons. While these laws reduce non-suit claims brought against non-surgeons, the evidence suggests that injured patients simply substitute lawsuits for non-suit claims. Additionally, apology laws increase indemnity payments for non-surgeons and, in doing so, narrow the gap between the average payment made by surgeons and non-surgeons. Overall, the results suggest that, unless a physician routinely performs surgery, her risk of facing a lawsuit increases and the average payment she makes as part of a claim increases. Surgeons do not see similar increases, but neither do they see decreases in the probability or severity of malpractice claims. In other words, the evidence reported here suggests that apology laws do not, in general, attenuate medical malpractice liability risk.
The study is available online here.