Apology laws do not reduce medical malpractice suits, study finds

By John Breslin | Feb 10, 2017

Apology laws that allow physicians to express sympathy to patients and families without it being used against them have not reduced the number of medical malpractice suits filed, or the amounts paid out, according to a new study.

Indeed, the “I’m sorry” laws enacted in 32 states increased the number of suits against non-surgeons, the study by a team from Vanderbilt University concluded.

Travis Akin, executive director of Illinois Lawsuit Abuse Watch   Courtesy of Travis Akin

And so, the study suggests, an apology law pilot program introduced in Illinois in 2005 but allowed to peter out – may have had no, or little, impact on medical malpractice suits in the state.

But that should not matter because the law allows people to be decent human beings, said Travis Akin, executive director of Illinois Lawsuit Abuse Watch.

“All this law does, the concept, would allow people to be decent human beings and that should not be an admission of guilt,” Akin told the Record.

Apology laws prohibit a plaintiff introducing as evidence an apology made by a physician if a mistake is alleged. The laws are aimed at reducing lawsuits, based on the reasoning that a decision to file a suit is often made in anger, which can dissipated by acts of compassion.

But the study shows that the laws make no difference for surgeons, and may in some cases encourage a suit as an apology “might transport a signal,” said Benjamin McMichael, a postdoctoral scholar at Vanderbilt and one of the authors of the study.

“By apologizing, the doctor tells the patient he screwed up when the patient previously did not know that,” McMichael said. “They can’t use the apology itself, but knowing something went wrong, they can look for other evidence that they can use.”

This may happen more often in a non-surgical setting where a mistake is much harder to identify.

The authors studied 90 percent of all malpractice claims, 3,517 in total, across the country from 2004 to 2011. They admitted there was no way of knowing how many apologies were made.

“In general, the results are not consistent with the intended effect of apology laws, as these laws do not generally reduce either the total number of claims or the number of claims that result in a lawsuit,” according to the study.

“Apology laws have no statistically significant effect on the probability that surgeons experience either a non-suit claim or a lawsuit.”

In Illinois, the pilot program that began in 2005 appears to have petered out entirely by 2010. As of today, apologies can be used in evidence against a doctor in Illinois.

“Something not moving in Illinois is not a surprise,” Akin said. “What makes anyone think that with a pilot program that we are actually going to follow through? That is part of the culture.”

But, crucially, Akin added, “I think that it really should not matter if it works or not,  because doctors are human beings, and doctors care deeply, and if something goes awry they are going to feel responsible.

“When it comes to doctors and things going badly wrong, there are serious consequences and doctors should be allowed to have that sort of relationship and express sorrow without admitting liability.”

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