Stanford Law Review Article: Apology Laws Create More Med-Mal Lawsuits?



Last week, while many folks were away on Easter, Passover, and Spring Break vacations, a few trade media publications reported on a Stanford Law Review article that claims so-called state apology laws may actually increase medical malpractice lawsuits for non-surgeons. The title of the study is, "'Sorry' Is Never Enough: How State Apology Laws Fail to Reduce Medical Malpractice Liability Risk."   

Two years ago the authors of this same article released an earlier, slimmed down version of the paper through an online journal.  The first version of their paper did a lousy job of explaining their methodology, and what really incensed me was I emailed the authors asking questions and they ignored me. The whole thing stunk and appeared to be a hit job on the disclosure movement.  You can read my 2017 critique here.  I was not very nice.  

I have a different opinion now.  This is a longer and improved version of the paper I trashed two years ago. This time around, the authors did a good job of explaining their methodology and the results make sense, mostly.  In states with apology laws, non-surgeon physicians saw higher rates of medical malpractice lawsuits and dollars paid out.  The authors did not see a similar effect with surgeons.  

For me, apology laws have always been a quandary...I have always said they make docs feel more comfortable about apology but have little legal value (defense lawyers should want to use the evidence created in a disclosure process if a case goes to trial).  Moreover, while apology laws have some PR value (they popularize apology for medical errors), they are an inadequate substitute for disclosure and apology programs within individual hospitals, practices, nursing homes, and pools of insureds.  Finally, the major advocacy and training thrust for Sorry Works! has always been disclosure programs --- not apology laws.  Disclosure programs are where we have seen the reduction in lawsuits and defense costs and an increase in patient safety metrics.  Healthcare organizations should never be satisfied with state-wide laws on apology...they need to develop individual disclosure programs. 
 
This study should steer people to disclosure and apology programs. In fact, the authors are careful to state their study does not negate the data/findings of disclosure programs which show a reduction in litigation and costs.  The authors go on to stress that doctors and other healthcare professionals need to be trained on having difficult conversations with patients and families, which is what happens in any good disclosure program.  Moreover, the study's authors highlight the importance of doing more than saying "sorry."  Apology means more than words; you have to fix the error and repair the damage caused by the error, financially and otherwise, and this is what disclosure programs do. If a doc just says "sorry" for an error and nothing more (which is what apology laws kinda encourage), we shouldn't be surprised if litigation or other acts of revenge follow.  On page 386 of their study, the authors state, "...simply being allowed to apologize is not enough to reduce malpractice risk."  You have to back up words with action, and support in the form of a program is needed....

I still do worry that this study will be used as an excuse by naysayers.  Moreover, I disagree with the closing statements from the study that defense attorneys were right all along by discouraging apologies. First, the statement does not fully capture the reality that defense lawyers have too often discouraged all forms of post-event communication, which angers patients and families and increases the likelihood of litigation and other acts of revenge.  Second, apology was/is always the right thing to do, so long as it is done right --- which means having a disclosure program! 

As for state laws, if lawmakers still want to encourage apologies to stem medical malpractice litigation, they should craft legislation that encourages the development of disclosure programs.  Oregon, Iowa, and Massachusetts have interesting and useful language. Also, lawmakers could expand the apology law concept to say a hospital, nursing home, or group of insureds would have their apologies kept out of court if they develop formal disclosure programs that meet certain criteria, including the patient/family can be represented by counsel and a system is in place to provide fair, upfront compensation for compensable claims. In general, the authors of the study concurred with this assessment. 
 
Last thought....this study illuminates why we need to reach some consensus on the word "apology."  The Stanford Law Review article treats "apology" as a catch all -- from empathy and sympathy to admission of fault. Many "apology laws" are guilty of the same crime.  Much more education is needed here....

Sincerely,

- Doug   

Doug Wojcieszak, Founder & President
Sorry Works!
618-559-8168 (direct dial)
doug@sorryworks.net (direct e-mail)