Many states – in fact, most states – have enacted legislation allowing healthcare providers to apologize to patients and families without fear of having the apology used in court should future litigation arise. These laws are known as apology laws. Currently, thirty-seven states have legislated some version, with most having the same philosophy, though all to varying degrees (Illinois’s apology law, originally enacted in 2005, was found unconstitutional by the Illinois Supreme Court).
These laws allow physicians and other health care providers to express their condolences to a family after a loved one has passed. One of the rationales for laws like these is that allowing medical providers to apologize without fear of liability for doing so may reduce the likelihood of medical malpractice lawsuits. The reality, however, is that the vast majority of healthcare providers simply want to extend their condolences to grieving family members.
Here’s something you may not know: before the apology laws, several healthcare systems around the country had long since established policies for apologizing to patients when provider errors occurred. In one study, an explanation and apology following a provider error would have caused 37% of respondents not to file a civil suit. The same study found that patients feel the need to hire an advocate when they have not received adequate answers to questions about their outcomes, when they sense the absence of accountability for what happened to them, and/or when they worry the same mistake could be made in another patient’s care.
Simply stated, this means health care providers are allowed to extend compassionate gestures, issue statements of condolences or a broad “sense of apology” without fear of having those words come back to haunt them should the family sue for wrongful death.
“We have in the past seen situations with physicians being afraid to express a benevolent gesture for fear that it will be used against them in court,” said Richard Schott, a Philadelphia, PA cardiologist and president of the Pennsylvania Medical Society.
The grieving process, while part of the human condition, can often lead us to want to place blame.
There are those instances when the law will not exempt a medical professional from having to face a family in a courtroom. If a statement is made that includes an admission of guilt or acknowledgement that negligence played a role, it can be used in a lawsuit. “I’m sorry for your loss: is not an apology, but rather, an expression of sympathy, which might be appropriate,” explained Schott. He continued, “It looks like any statement along the lines of, ‘I operated on the wrong leg. I’m really sorry. It was my fault.’ — those sorts of things would be admissible.”
So what does this mean for long term medical malpractice lawsuits? It’s hard to tell, but our country is one of the most advanced in the world in all things related to medicine. Grieving the loss of loved ones is not easy, never predictable and for some, it can be hard to come to terms. One thing we did consistently hear in our research was most doctors agree the possibility of a lawsuit plays no role in in how they view an apology, “I think it’s just human nature to want to reach out to a family and let them know you witnessed a part of their loved one’s life. You want them to know that their loved one impacted you in some way.”