The Folly of the Vanderbilt Apology Law Study
This past Saturday, Sorry Works! published a piece highlighting what most media outlets and "snarky doctors" missed about the recently published Vanderbilt Apology Law Study. Namely, that the study clearly stated to reduce lawsuits and litigation expenses, healthcare organizations need to implement disclosure programs. This jives with the historical advice offered by Sorry Works: You need to develop a disclosure PROGRAM.
Today, we focus on the folly of the Vanderbilt Apology Study. In summary (call this an abstract), the conclusions drawn about apology laws by the Vanderbilt researchers are erroneous and damaging to the disclosure movement. The whole point of apology laws is to encourage docs to apologize. However, the Vandy researchers candidly admitted they never ascertained whether apologies increased or decreased with apology laws! Yet, the Vander researchers made the leap that apology laws are responsible for an increase in litigation in the data they studied. The Vandy researchers made this claim without accounting for other contributing factors (media stories about medical errors, activities of the trial bar, etc). I believe these statements gave comfort and aid to disclosure skeptics. Indeed, disclosure skeptics gleefully proclaimed, "Look...it's what we've told you all along...saying sorry will get a doctor sued." The correct punch line for the Vanderbilt apology law study should have been "We did not see a decrease in med-mal lawsuits in states with apology laws. We saw, instead, that lawsuits remained flat or possibly increased, but any increase in litigation could have been attributable to a variety of factors (since we did not measure if apologies increased due to apology laws). However, if state legislators truly want to decrease medical malpractice lawsuits, they should work for the creation of disclosure programs where physicians are trained and leadership is involved to provide early offer settlements in cases of true error. However, hospitals, nursing homes, and insurers do not have to wait for legislative help...they can implement disclosure programs on their own anytime they wish."
For the record, I shared two drafts of this e-newsletter/blog with the Vandy researchers via three e-mails, and I encouraged their feedback, said my mind was open to being changed, and offered to share their comments with you, our readers. They did not reply to me.
Walk with me
The Vanderbilt researchers had a noble and interesting mission: Determine if medical malpractice lawsuits decreased in states with apology laws. It's a valuable public policy question, and the study should have been simple enough to conduct: Look at closed claims data in states with apology laws over a certain period of time, and see if the claims increased, decreased, or remained the same. Easy peasy, right? Well, the Vandy team took it a little too far, and in their folly, they made some unfortunate statements that I believe did damage to the disclosure movement. These unfortunate statements --- apology laws increased litigation -- have been re-played by disclosure skeptics in the media and social media, and patients, families, and clinicians will pay the price.
First, I think we can all agree that the whole point of apology laws is to get doctors to apologize and talk with patients/families after adverse medical events in the hope of decreasing medical malpractice lawsuits. Any objections? Good....
Second, however, the Vanderbilt researchers made the following statement on page 10 of their report: "In this study, we do not observe whether apology laws increase apologies by physicians." So, the Vandy folks didn't measure the one thing that apology laws are supposed to do -- get docs to apologize in order to reduce malpractice claims. Going further on page 10, the Vandy team said they "assumed" that physician apologies increased simply because medical societies and media in states with apology laws issued reports and news stories about the apology laws -- if it were only that easy! Any risk manager would have gladly disabused the Vandy researchers of their "assumptions."
Third, even though the Vandy team admitted they did not even attempt to measure if apology laws actually increased apologies -- which is the entire purpose of apology laws -- they made the following definitive statements: "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" (abstract, page 1). They made similar statements on pages 3, 20, and 21...even saying on page 21: "For non-surgeons, apology laws increase the probability of a lawsuit by 1.2 percentage points. This represents an approximately 46% increase in the probability of facing a lawsuit relative to the national average." How can they make these definitive claims when they have not measured if apology laws actually increase apologies?
Fourth, on page 12, the Vandy team laid out their methodology, and nothing in those methods indicated to me that they attempted to control or account for the myriad of other variables that impact the rate of medical malpractice litigation. Variables such as media coverage about medical, the activities of the trial bar, the actual amount of errors and/or quality of medicine being delivered in a given state, etc. Indeed, ever since to Err is Human was published in 1999, there has been an ever increasing drumbeat of media stories about medical errors, and this has only intensified with the onslaught of social media. Surely this media messaging --- "doctors make mistakes" -- had some impact on this data set. In fact, irony of ironies, the passage of apology laws usually includes a flurry of news reports about doctors/hospitals making mistakes!
In short, there is no way the Vandy team can definitively state that apology laws increase (or even decrease) medical malpractice lawsuits or payouts for claims. At best, the Vandy researchers could have made weak correlations between the presence of apology laws and closed claim data, and nothing more.
Again, the Vandy team could have easily looked at states with apology laws and measured if lawsuits and payouts decreased, increased, or remained flat -- and they should have stopped right there! The punch line for the Vanderbilt report should have been "We did not see a decrease in med-mal lawsuits in states with apology laws. We saw, instead, that lawsuits remained flat or possibly increased, but any increase in litigation could have been attributable to a variety of factors (since we did not measure if apologies increased due to apology laws). However, if state legislators truly want to decrease medical malpractice lawsuits, they should work for the creation of disclosure programs where physicians are trained and leadership is involved to provide early offer settlements in cases of true error. However, hospitals, nursing homes, and insurers do not have to wait for legislative help...they can implement disclosure programs on their own." " That conclusion would have been a valuable service, and fed nicely into the message promoted by countless disclosure advocates: You need a disclosure program.
If the Vanderbilt researchers truly wanted to make more definite statements about apology laws, they needed to a) measure increases (or decreases) in apologies with the passage of the apology laws -- not make ill-informed assumptions as well as b) account for other factors that could increase or decrease medical malpractice litigation. It would have been hard, if not impossible, work, but that's the only way they could have definitively stated that apology laws were truly impacting medical malpractice litigation.
Instead, the Vandy team editorialized that apology laws increase lawsuits, and this folly played into the age-old rebuttal of skeptics that apologies will get doctors sued. Thanks, guys!
The shame of this study is that some of the ground breaking work on disclosure was done at Vanderbilt in the 1990's by Hickson and friends. Dr. Hickson showed us that us doctors with the highest customer service complaints and poorest bedside manner get sued most often. That work laid the foundation for every disclosure program in the United States. Moreover, Vanderbilt Medical Center, under Hickson's leadership, has operated a successful disclosure program. Finally, Hickson and his team do wonderful disclosure training programs for hospitals and insurers...I attended one of Hickson's disclosure training programs and it was awesome -- and there was not one mention of apology laws during Dr. Hickson's training program!
The Vanderbilt researchers should retract their erroneous conclusions and adopt our suggested punch line. If not, hopefully this study is rejected by every serious journal.
Going forward, a similar study would be valuable in states like Massachusetts and Oregon which have passed apology laws that require the development of disclosure programs that meet certain requirements in order to receive immunity. That would be interesting.
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