'Apology' Laws for Malpractice: Deader Than a Dodo?

Alicia Gallegos

November 10, 2021

Indiana cardiologist Ralph Millsaps, MD, remembers the heartache he felt for a longtime patient's family after the man died in his care. The morbidly obese patient, who had undergone several angioplasties, received a stent but suffered a complication after the procedure.

At the time, stents were new, and it was standard to use three anticoagulants after procedures, Millsaps explained. The patient experienced a retroperitoneal bleed, became hypotensive, developed ischemic bowel, and died.

"I was taking care of this guy over 10 years and knew his wife and kids very well," said Millsaps, who recently retired. "I told them I felt very badly and that I think it was related to all the blood thinners that were needed because of the stent. I told them how sorry I am that this happened."

Millsaps went to the patient's funeral, hugged the patient's family members, and later received a thank you card from his wife.

Six months later, they sued him for malpractice.

"For me, I was most surprised because I had a close relationship with the family for a long time and I didn't anticipate a daughter coming in and stirring the pot to bring a malpractice suit," he said. "I didn't go to very many patients' funerals in my 40 years of practice, but I went to his, and maybe I shouldn't have."

Millsaps will never know whether his expressions of sympathy affected the family's decision to sue. The case was ultimately settled. His legal ordeal occurred before Indiana enacted its state apology law. The statute, similar to those in 38 other states, aims to reduce malpractice lawsuits by protecting some forms of apologetic statements from admissibility if a claim is pursued. The underlying theory is that after receiving an apology, patients are less likely to sue or are more apt to settle claims they've filed.

But growing data show that state apology laws not only have failed to reduce medical malpractice claims, they have also led to an increase in the rate of liability claims. Experts say the results will likely have a chilling effect on physicians' apologizing to patients, despite apology laws intended to do the opposite. The research also raises questions about why state apology laws are still in effect if they appear to have missed their mark. Should the laws be struck from the books, or is there a way to improve them?

State apology laws are different from disclosure programs at hospitals and healthcare institutions, and the two should not be confused, says Doug Wojcieszak, MA, MS, founder of Sorry Works!, a nonprofit organization that works to advance the disclosure and apology movement in healthcare settings. Hospital communication and disclosure programs generally emphasize full disclosure of adverse events, investigations, systems changes to avoid recurrences, rapid apologies, and financial compensation when reasonable. State apology laws, on the other hand, center on legal protections over a physician's apologetic statements to a patient.

"State apology laws don't work as intended," said Benjamin J. McMichael, JD, PhD, a researcher and associate professor of law at the University of Alabama School of Law, Tuscaloosa, Alabama. "The goal is to reduce either the volume of medical malpractice litigation or the size of awards. They really don't work that way. In fact, the laws tend to increase medical malpractice litigation on a variety of measures."

Why Are Apology Laws Failing?

In a landmark 2019 study, McMichael found that apology laws did not lower the probability surgeons would face a claim or that the laws would affect the average payment made to resolve a claim. For nonsurgeons, apology laws raised the probability of being sued and increased the average payment to resolve claims, according to the study, which was published in the Stanford Law Review. The investigators utilized claims data from a national malpractice insurer that contained information on 90% of all US physicians practicing in a particular specialty from 2004 through 2014.

To ensure that the results were not a one-off finding, McMichael conducted two additional studies, which yielded similar results. In another 2019 study, in which more than 1.6 million hospital stays between 1999 and 2011 were analyzed, the researchers found no evidence that apology laws reduce the practice of defensive medicine. A 2021 study of medical malpractice insurance premiums shows that apology laws increased premiums charged to general surgeons, internists, and obstetrician-gynecologists by 10% to 16%. (A working version of the article, which will be published in the Florida State University Law Review, can be found here.)

"What seems to be happening is once doctors apologize, patients now know the injury is potentially a result of malpractice, whereas before they get that apology, they may think they were just one of the unlucky ones who had an adverse outcome," McMichael said. "Once they get an apology, they think, 'Even if I can't use that apology against you, what I can do is go to an attorney and get other evidence that demonstrates malpractice.' "

The language within apologies can be misconstrued by patients, adds Catherine Flynn, Esq, a medical liability defense attorney based in Parsippany, New Jersey. She is currently representing a physician who expressed compassion to a patient following a surgery complication. The doctor explained he didn't yet know why the complication occurred and said, "I'm sorry that you're going through this," Flynn said. The patient is now suing.

"The patient testified in a deposition that the doctor apologized for committing malpractice," she said.

The case is active and ongoing.

The fact that most state apology laws don't protect error disclosures from admissibility contributes to their ineffectiveness, notes William Newman, MD, a professor of psychiatry at the Saint Louis University School of Medicine and medical director for adult psychiatric inpatient services at the Saint Louis University Hospital, St. Louis, Missouri. Newman co-authored a May 2021 article entitled, "The Role of Apology Laws in Medical Malpractice." The study concluded that the laws have not had their intended effect of reducing malpractice rates. Of the 39 states that have apology laws, more than two thirds protect expressions of regret, but they do not protect statements of error or fault.

"I think we've all experienced partial apologies, where someone says something to the effect of, 'I'm sorry that hurt your feelings,' which is not as effective as, "I recognize my own fault in hurting your feelings.' So, unfortunately, I think a lot of the partial apology laws hamstring physicians and prevent the true intention of apologizing."

Compared with full apologies, partial apologies are less likely to reduce anger, prompt forgiveness, or repair a damaged relationship, according to the study by Newman and colleagues. In comparison with those who provide partial apologies, people who express full apologies are viewed generally as more moral and more likely to be careful in the future, research has shown.

Because few of the 39 states have full apology laws, they have been more challenging to study, says Nina Elizabeth Ross, MD, assistant professor of psychiatry at Case Western Reserve University, Cleveland, Ohio, and lead author of the article, "The Role of Apology Laws." Most research, including the Stanford Law article, is focused on partial apology laws.

"Because there are fewer states with full apology laws, it's difficult to assess whether or not states with full apology laws have reduced malpractice rates and costs," Ross said. "Further research is definitely needed with regard to states that have full apology laws, although the limited number makes that difficult to do."

Hospital-Based Programs Show Success

Although state apology laws seem to be faltering, disclosure programs at hospitals and healthcare institutions are proving successful, advocates say.

The programs, known as communication and resolution programs (CRPs), have grown steadily over the past 20 years and continue to generate positive results, Wojcieszak said. One such program is Communication and Optimal Resolution (CANDOR).

"More and more healthcare organizations are picking it up," Wojcieszak said. "Some are going all in with a disclosure program, while some are using disclosure case by case. I think the healthcare field has figured out disclosure is a good thing, and the focus is now on determining best practices."

The broadest study of institution-specific apology and disclosure programs was of the program used by the University of Michigan Health System. Researchers found that the program decreased demands for compensation by about one third and lowered the number of lawsuits by about two thirds. The hospital system also saved about 60% in compensation costs, and mean lawsuit costs dropped by nearly 45%.

"The Michigan Model, or the University of Michigan's communication and resolution program, continues to embody the core principles of improving patient safety, early, transparent, and honest communication with patients and families about unanticipated outcomes, accountability, and offers of compensation when clinical care has been determined to be unreasonable," said Kelly Saran, RN, the university's administrative director of patient relations and clinical risk.

The program continues to be effective, Saran said, although there are no recent data regarding the program's effects.

"With the complexities of healthcare delivery during the pandemic, Michigan Medicine, in congruence with the rest of the nation, has seen an upward trend in new cases," she said. "Plaintiff attorneys are also waiting out cases rather than resolving them earlier, thereby extending the time frame from claim notification to resolution."

CRPs at institutions have had positive effects on physicians, said Allen Kachalia, MD, JD, senior vice president of patient safety and quality for Johns Hopkins Medicine and director of the Armstrong Institute for Patient Safety and Quality.

"They find it makes the whole process better once something goes wrong," he said. "What these programs do is build a support structure for the physician and have people help walk them through the discussions with the family, help with follow-up, and guide physicians through the resolution process, if there is a claim or if compensation is being proactively offered. There's a lot of support that comes with these programs."

Kachalia, who has long researched such programs, in 2018 evaluated the liability effects of CRPs at four Massachusetts hospitals. The study found that none of the hospitals experienced worsening liability trends after the programs were implemented, although they did not experience the dramatic reduction in claims costs and trends seen with earlier CRPs.

"This shows you can do the right thing without expecting your liability risk to go through the roof," Kachalia said.

A New Generation of Apology Laws on the Horizon?

Despite the disappointing data on state apology laws, Wojcieszak does not think the statutes should be dropped from the books. He believes the laws can be improved, and he points to four states that have already improved approaches to apologies.

Massachusetts, Iowa, Oregon, and Colorado recently passed new apology laws drafted to encourage the development of disclosure programs within healthcare organizations.

"Most of the traditional apology laws were passed in the late 1990s and 2000s. These four states passed their laws in the last 3 or 4 years," Wojcieszak said. "The first generation of apology laws just dealt with evidentiary issues. The second-generation apology laws passed in the four states tie the evidentiary benefit with evidence of a program. To get the evidentiary carrot, if you will, you have to show that you have a program, and the program has to have certain parameters."

Colorado's Candor Act, for example, establishes a voluntary framework for healthcare professionals to offer compassionate, honest responses to patients who experience an adverse incident and offers compensation under certain circumstances. The law does not limit a patient's ability to sue. Communications that occur during the candor process, including compensation offers, are privileged. If a patient accepts an offer of compensation, a healthcare practitioner or institution may require a release of liability, thereby preventing a subsequent lawsuit from being filed.

Sorry Works! is launching a research project later this year to study the four new state laws and their effects. A CANDOR enabling bill, HB 807, was introduced in the 2021–2022 Georgia legislature.

"I think it has a good chance of passing," said Florence LeCraw, MD, co-chair of the CANDOR Coalition, a program dedicated to producing a law that promotes candid communications between physicians and patients. "Both Democrats and Republicans have been very receptive to it."

More than 600 US hospitals have implemented CANDOR, but many hospitals are in states that do not have a CANDOR law, said LeCraw, who led a 2018 study of the impact of a CRP on liability outcomes at Erlanger Health System, in Chattanooga, Tennessee.

"CANDOR may be more quickly adopted in states that have this law," she explained. "The law creates a 'safe space' so that during the CANDOR meeting, everyone can communicate openly with no fear that what is said will be used if the patient decides they don't believe the hospital/physician is telling the truth or they think the compensation offered is too low. It is treated like quality improvement meetings. If the patient/family decides to litigate, they must go through the normal discovery process."

Should Physicians Apologize to Patients?

Physicians often have mixed feelings as to whether to apologize to patients after poor outcomes and about how much they might share regarding errors.

"Saying 'I'm sorry' has nothing to do with being 'human,' and not saying it has to do with reality," a radiologist commented in a Medscape Medical News article about apologizing to patients that was published in 2019. "With the exception of those physicians we read about committing heinous crimes against their patients, none of us went into medicine to hurt a patient, purposely or accidentally. Reality, however, regarding one's susceptibility to malpractice quickly teaches 'I'm sorry' has no place in the realm of modern medicine."

In Medscape's 2021 Malpractice Report, nearly 80% of physicians who were sued said they that did not think saying "I'm sorry" would have made any difference, 2% said it would have made a difference, and 19% were unsure.

Some physicians say that apologizing to a patient in the midst of experiencing a tragic outcome is worth it if the apology is offered correctly.

"I said I was sorry immediately and at the child's funeral, in a card to the mother, and at the end of the settlement," a family physician wrote in the 2021 Malpractice Report. "I was told her child's father filed the suit soon after child's death, being told by tertiary care hospital that not all was done for the child. The mother reportedly did not want the suit to proceed. I advocate that an apology is appropriate if heartfelt."

Physicians have a moral obligation to apologize to patients when appropriate, regardless of whether protections exist or programs are implemented, says Kachalia.

"It's important to remember that whether or not apology laws are in place, we have an ethical duty to apologize for and disclose our errors," he said. "While apology laws may encourage and get difficult conversations started, they should not be the primary motivator for apologizing to patients."

Millsaps, the Indiana cardiologist, says that, looking back, he wouldn't have changed how he interacted with the patient's family after the man's death, despite being sued. Throughout his career, Millsaps continued to apologize to patients if there was a poor outcome and to express sympathy.

"Even though I had that bad experience, it still didn't change how I reacted when I had complications," he said. "You have to go out and talk to the family. I don't know whether it increases or decreases the risk of a malpractice suit, but I think from a human standpoint, it's the right thing to do."

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