The Limits of Apology Laws

Rebecca Dresser

The Hastings Center Report. 2008;38(3):6-7. 

In This Article

Introduction

During the 1990s, apology laws emerged as an initiative that could help reduce the rate of medical error. The laws are designed to reduce the liability risks associated with disclosing mistakes. Many states have laws that prevent a health care worker's expression of sympathy or regret from being used as evidence of negligence in a malpractice action. Some also exclude as evidence statements that acknowledge responsibility or fault related to an adverse patient outcome.

The link between apology laws and reducing medical errors is indirect. In theory, apology laws diminish clinicians' and administrators' reluctance to disclose errors by dispelling their fear that a malpractice suit will follow. In turn, more openness about medical errors will encourage the systemic changes needed to improve patient safety.

Improved patient safety is not the sole justification for apology laws, however. If the laws encourage physicians to disclose medical errors, then they could also advance other ethical objectives. By informing patients and families about deficiencies in patient care, physicians fulfill their fiduciary responsibilities to tell the truth and promote patients' best interests. Disclosure gives patients the information they need to make health care and other important personal decisions. It also prevents unnecessary anxiety about what caused a health problem and allows patients to receive appropriate follow-up care. Finally, disclosure allows patients and families to be fairly compensated for further care, missed wages, and other related losses.[1]

Apology laws are just one component of a broader regulatory and institutional effort to pierce the traditional veil of silence about medical errors. A few states require notification of unexpected events. The Joint Commission on Accreditation of Health Care Organizations includes among its accreditation standards a requirement that hospitals inform patients about unanticipated outcomes. The National Quality Forum, an influential, standard-setting organization, has issued guidelines endorsing disclosure and prescribing implementation measures like clinician training and monitoring outcomes.[2]

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