Just this week, Pennsylvania became the 37th state (in addition to Guam and the District of Columbia) to enact a healthcare apology law- Senate Bill 379. One might wonder why it took Pennsylvania, usually one of the most innovative and enlightened states when it comes to healthcare issues, to finally enact an apology law.
At least part of the reason for this apparent tardiness may lie in the fact that there is still considerable debate as to whether “benevolent gesture laws” such as these will actually reduce medical malpractice litigation.
Proponents of “sorry” legislation like to cite statistics from the Veteran’s Administration and the University of Michigan that full disclosure and apology programs have tremendously reduced litigation costs and will also result in increased judicial and jury sympathy towards apologetic defendants.
Opponents, on the other hand, believe that increased communication about mistakes, omissions, and errors will actually produce increasing malpractice claims because it will educate previously unaware patients of the medical errors responsible for their injuries. In addition, regardless of which side of the “apology debate” you believe has merit, there are very distinct variations by state with respect to what can be stated, who it can be stated to, when it needs to be stated, and even how it is stated so it is critical that before any apologies are made (or not), a careful review of state law is performed.
In most states with apology laws, it is important to distinguish between an expression of regret and an admission of fault because the latter will be admissible in all but about 8 states at the present time. A further complication to this picture is that very often (especially during complex procedures) what actually happened to cause the negative outcome may never fully be known.
Many states also have specific time limits as to when these expressions can be made and not be held against the party issuing the statement as well as how (statement, gesture, conduct, affirmation, activities, writing, etc.) they can be made. Typically apology laws will limit protection to any statements made to the alleged victim as well as to family members while some states also include legal representatives and/or friends.
While monetary compensation is certainly of great importance to injured patients and their families, often litigation can be avoided when fair compensation is combined with a proper apology. In addition, studies have shown that another element of key importance to injured parties is the acknowledgement of loss by the providing party and the reassurance that a full investigation as to why the event occurred will be promptly undertaken. Injured parties really do want some assurance that the mistake will not recur and impact some other unsuspecting patient. The commitment to do and be better in the future (as a result of the event) is of importance as well.
Surprisingly, studies have shown that those most likely to commence malpractice litigation for an adverse event as those patients who have a personal relationship with the provider, are better educated, and wealthier. They are also typically the plaintiffs who have consistently requested treatment be performed and have been unhappy with the results and/or have demanded diagnoses which was beyond the physician’s expertise. Less educated, less well to do patients are less likely to initiate malpractice litigation.
With 37 states now on the healthcare apology band wagon, it would appear that “sorry” may be becoming an easier and more protected word to mention in healthcare, but it is still critical that before those 5 letters are put together, careful review of state laws as well as your own facilities policies are reviewed. In addition, it is always good practice that any statement of regret is made with sincerity and in person with the appropriate witnesses/advisors (counsel, risk management, medical/nursing officer, administrator, etc.) present and that engagement with the injured party continues long after any apology is made.
