Research Proposal: Assessing the Effectiveness of 2nd Generation Medical Apology Laws: Lessons from Four Early Adopters
Research Funding Proposal
Assessing the Effectiveness of 2nd Generation Medical Apology Laws: Lessons from Four Early Adopters
Doug Wojcieszak, MA, MS, President, Sorry Works!, a 501c3 Patient Safety Organization 618-559-8168
Disclosure and apology for medical errors (also known as “CANDOR” or Communication and Resolution Programs or “CRP”) encourages healthcare professionals to openly discuss mistakes and make amends (financial and non-financial) with patients and families. This honest, transparent approach has been shown to reduce medical malpractice lawsuits (by reducing anger felt by consumers) while increasing patient safety (clinicians are more inclined to talk about events and learn from learn) and has caught on with healthcare organizations around the United States (1).
Healthcare organizations do not need legislation to implement disclosure and apology/CRP programs, however, legislators can encourage the adoption of disclosure and apology/CRP. Thirty-nine states have passed “apology laws” to motivate medical professionals to communicate with patients and families after something goes wrong. These laws differ in what evidence is inadmissible in a medical malpractice lawsuit, from statements of empathy or sympathy to admissions of fault (admissibility standards vary by state). Surprisingly, Stanford Law Review published a paper in 2019 entitled, “Sorry Is Never Enough: How State Apology Laws Fail to Reduce Medical Malpractice Liability Risk.” (2). This paper presented data suggesting state based-apology laws for medical malpractice cases do not reduce malpractice claims and may even increase liability risk for some physicians. The study’s authors, however, included the following passage in their paper:
“..if state lawmakers remain committed to the goals of apology laws but want a more effective means of accomplishing them, they may turn to hospital specific apology programs that provide physicians with training on the effective utilization of apologies. In particular, our results do not undermine the existing evidence of particular hospital-specific apology and disclosure programs. Multiple studies have confirmed that these programs can effectively reduce both the incidence and severity of malpractice claims, and state lawmakers can shift their attention to these programs. New state laws could provide incentives for hospitals within a state to adopt these programs.”
Four states – Massachusetts, Iowa, Oregon, and Colorado – have recently passed apology laws that were drafted to encourage the development of actual disclosure programs within healthcare organizations. The apology laws from these states may be coined “2nd Generation Apology Laws” and appear to meet the recommendations of the Stanford Law Review paper. These 2nd Generation Apology Laws should be studied, compared, and even contrasted to understand how they are working, how they can be improved, and to make policy recommendations to other states.
For this proposed project, key stakeholders in the four states (MA, IA, OR, CO) will be interviewed to gather opinions on what is working with their laws and what can be improved. Six (6) stakeholders per state be interviewed for a total of 24 interviews for the project. Conversations with key stakeholders will cover a variety of topics, including how the legislative language was drafted, how it is performing, and what can be done differently or improved. Stakeholders will also be asked how their legislative language encourages the adoption of disclosure and apology within healthcare organizations other than hospitals, including long-term care facilities. These interviews will be recorded and transcribed, and then analyzed by Nvivo software by QRS International to conduct a thematic analysis of comments from stakeholders. An assistant will be hired to edit transcripts and provide an additional set of eyes during coding.
In addition to interviews, any data or reports associated with apology laws in the four states (MA, IA, OR, CO) will be reviewed.
Finding and model legislative language will be published in a prominent peer-reviewed publication to attract the attention of appropriate stakeholders.
References:
1) Wojcieszak, Doug. "Review of disclosure and apology literature: gaps and needs." Journal of Healthcare Risk Management 40.1 (2020): 8-16.
2) McMichael, Benjamin J., R. Lawrence Van Horn, and W. Kip Viscusi. "Sorry is never enough: how state apology laws fail to reduce medical malpractice liability risk." Stan. L. Rev. 71 (2019): 341.
Preliminary Budget:
· Assistant for Coding and Thematic Analysis: $3,800
· Transcription of interviews: $1,200
· Recording of interviews; $500
· Salary support for Sorry Works: $29,500
Total: $35,000
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