Apology Laws Don't Cut Payouts in National Analysis

Marcia Frellick

April 08, 2019

Apology laws, passed in 39 states and the District of Columbia, don't reduce litigation or lower payouts and, in some cases, may have unintended consequences, say authors of a recent article published in the Stanford Law Review.

The laws appear to have little effect on surgical cases, but payouts for nonsurgical cases more than doubled over 8 years in states with apology laws compared with states lacking them.

Laws Make Apologies Inadmissible in Court

Benjamin J. McMichael, JD, PhD, assistant professor of law at the University of Alabama in Tuscaloosa, and colleagues write that policymakers have tried to reduce the billions of dollars the United States spends each year on malpractice claims and defensive medicine by instituting the laws. Once in place, the statutes make apologies by physicians inadmissible in court and thus assuage physicians' fears that the admission may be used against them if a patient sues.

The idea, they say, is that patients aren't as interested in punishing the doctor financially as they are in wanting to hear they're sorry.

"But what we find is that no, people sue for money. 'Sorry' is not enough," said coauthor Lawrence Van Horn, PhD, associate professor of management and law and executive director of health affairs, Vanderbilt University, Nashville, Tennessee, in a press release.

Health Policy Expert Says Cost Is Not the Laws' Main Focus

David Studdert, LLB, ScD, professor of law and medicine at Stanford University in California, told Medscape Medical News that most health policy experts agree the main intent of the laws was never to reduce liability and lower payments on claims. He says the laws were put in place "because it's the right thing to do." The lower costs were a selling point in passing the laws, he said.

He called the study "provocative" and said it is an important addition to the literature. However, a disappointing aspect of the study, he noted, is that the authors seem to isolate the laws as a stand-alone reform, when they are "really part of a broader array of reforms that include disclosure and also include new mechanisms for compensating patients.

"For patients who suffer medical injuries, they ought to know about those injuries and if the injury is due to some breakdown in care, then patients have a right to know that and get an apology from the institution for that," Studdert said.

In no way should the results of this study be seen by physicians as an argument against apologizing, he emphasized.

Apology May Trigger a Lawsuit

Senior author W. Kip Viscusi, PhD, university distinguished professor of law, economics and management at Vanderbilt, told Medscape Medical News that while the physician may feel better after the apology and the patient benefits, the apology may also alert the patient that the physician made a mistake and build confidence that a lawsuit might be successful.

The researchers obtained the proprietary data directly from a large national malpractice insurer. "This dataset includes substantially more information than is publicly available, and thus presents a unique opportunity to understand the effect of apology laws on the entire litigation landscape in ways that are not possible using only publicly available data," they write.

The team obtained malpractice claims for about 90% of US providers in one specialty — about 9000 providers including both surgeons and nonsurgeons.

About 4% of the physicians had a malpractice claim against them in the 8 years of the study and about two thirds of the cases went to court, the authors write.

The agreement for obtaining the data forbids releasing either the specialty or the insurer, Viscusi said.

He said the data represent the broadest look yet at the numbers.

"I know of no other study that's been national in scope," he said, adding that their analysis controls for aspects of a physician's practice, region, gender, etc.

Studdert cautions that although the data is national it represents only one medical specialty.

The researchers acknowledge that their results go against conclusions of some studies that show more positive effects of apology laws.

Viscusi says, however, that most previous work has involved case studies of a particular hospital or facility, and often the apology programs have been accompanied by training programs about what and what not to say.

"It may not simply be the apology that may be helpful in those case study examples," he said. "It would be useful to explore whether the training could offset adverse effects," he said.

Laws Made No Difference in Surgical Cases

For surgeons, the researchers found, apology laws made no difference either in number of claims or percentage of the claims that went to court.

But for nonsurgeons, though the number of claims remained unchanged in states with apologies, the claims were 46% more likely to lead to a lawsuit, according to the article.

The researchers explain the difference in the surgical and nonsurgical claims may be that the surgical claims are more obvious — such as leaving a sponge in a body cavity — and therefore the patient already knows when an error is ripe for a lawsuit. But for nonsurgical claims, the apology by a physician may be more of a surprise and may be the trigger that lets the patient know human error is involved.

"All across the board nobody seems to be better off because of [apology laws]," Viscusi said.

The study authors and Studdert have disclosed no relevant financial relationships.

Stanford Law Review. February 2019 issue. Full text

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