Should Docs Rethink Saying 'I'm Sorry' After a Medical Error?

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July 17, 2019

An orthopedic surgeon who caused the death of a patient in Ohio told the victim's family that he had nicked an artery and that he took full responsibility for it.[1]

When the family sued the surgeon and his group, Wooster Orthopaedic & Sports Medicine Center, the orthopedic surgeon's attorney cited the state's apology law. However, the law distinguishes between admitting fault and expressing sympathy. The surgeon lost in a lower court and on appeal.

Did his heartfelt apology at least move the jury to provide a relatively low monetary award?

It did not, according to Victor Cotton, MD, an internist and attorney who is president of Law and Medicine, a company that provides continuing medical education on medico-legal issues based in Hershey, Pennsylvania. The jury awarded the family $3 million.

This raises the question: Should physicians rethink saying "I'm sorry" after a medical error? If patients will sue and perhaps win anyway, what good does it do to apologize?

"The 'apology folks' tell us that we can go in and tell a person that we made a mistake that killed their father, and the family will forgive us. But many physicians who believe in the laws end up regretting it," says Cotton, who cited the Ohio orthopedic case.

Some patients and families may, in fact, forgive the doctor who apologizes, but they are not willing to forget. A 2009 study showed that patients and families do indeed come away with a higher opinion of these doctors, but they will still sue them.[2]

Furthermore, when patients do not know about an error, which is the case about half of the time,[3] the apology alerts them to it and gives them a reason to sue.

Once alerted, plaintiffs do not even need to cite the apology to prove their case. They can simply get a copy of the medical record, which they have a right to see, and look for the evidence in it.

Thirty-nine states have passed laws trying to protect doctors from malpractice litigation if they apologize for a medical error. However, a new study says these laws do not protect doctors, and in many cases, the laws even heighten their risks of a lawsuit.

Most Apology Laws Are Ineffective

A large percentage of the state apology laws were passed in the early 2000s as a form of tort reform. At that time, malpractice lawsuits were getting out of control. The apology laws were supposed to incentivize physicians to apologize by preventing patients from using their apology against them in a lawsuit.

Many state legislatures, however, watered down the concept. Of the 39 states with apology laws, just seven protect an admission of error. The rest have "partial apology" laws that only cover expressions of sympathy—for example, "I'm sorry that happened to you"—but not an outright apology.

A study on apology laws, published in the Stanford Law Review in February 2019, found that these laws do not lower the risk of surgical doctors being sued, and nonsurgical doctors actually have 1.5 times the risk of being sued.[4]

The study looked at payments made by a prominent malpractice insurance carrier on behalf of doctors in one medical specialty that has both surgical and nonsurgical physicians. Researchers agreed not to reveal the name of the carrier or the specialty.

Although the study covers just one specialty, researchers said the results provide insights for all doctors because they straddle the crucial malpractice divide between surgical and nonsurgical cases.

The results of the study do not have to convince most doctors that apologies aren't working to reduce malpractice risks. They have already seen the evidence in their experiences.

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