Apology Laws for Physicians? Yes, Really.

One of the first lessons we are taught growing up is to say, “I’m sorry.” We are taught to say, “I’m sorry,” when we hurt someone, when we see someone hurting, or when we make a mistake.

The older we get, the less likely we are to apologize or admit fault. In some instances, we may not apologize because we fear being sued. This is especially true for physicians who may fear malpractice lawsuits.

In some states, expressions of condolences or apologies to patients or family members may be admissible in court as evidence of wrongdoing or guilt in medical liability cases. When something goes wrong, it is natural for doctors or physicians to want to apologize or express condolences to patients and family members. However, most medical professionals are advised against making such statements. The fear is that the statement may be used against the physician if there is a lawsuit.

States have attempted to ease this fear by passing “apology laws.” However, these laws remain unclear and their intended effects may hurt both patients and doctors. A clear understanding of how and when to apologize, as well as the possible effects of the apology, is important to both patients and physicians.

What Are Apology Laws?

In the early 2000s, physicians faced a growing number of malpractice lawsuits. In an effort to reduce litigation expenses and medical liability lawsuits, state legislators and policymakers began passing apology laws. These laws exclude expressions of sympathy, condolences, or apologies from being used against medical professionals in court. In passing these apology laws (also known as “I’m sorry” laws), proponents believe that allowing medical professionals to apologize can reduce medical liability litigation.

According to the National Council of State Legislatures (NCSL), 39 states, the District of Columbia, and Guam have provisions regarding medical professionals making apologies or sympathetic gestures. Of these states, 6 states have provisions that specifically relate to accidents.

Apology Laws Create Complex Litigation

Ohio is one of the many states with apology laws. In 2004, Ohio enacted its Apology Statute, R.C. 2317.43. Seven years after its passage, Michael S. Knapic, D.O., an orthopedic surgeon in Wooster, Ohio, sought protection under the Ohio law when he was sued for the wrongful death of his patient. The patient’s family testified that after the fatal surgery, Dr. Knapic told them that he had nicked an artery and that he took full responsibility for it. Dr. Knapic’s statement was admitted as evidence and led to a $3 million judgment against him. The court found that the language in the Ohio apology statute protected “pure expressions of apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence, but not admissions of fault.”

However, a few years later, another Ohio doctor was sued and the court came to a different conclusion, excluding the statements of Rodney E. Vivian, M.D. made to a patient’s family members. The patient had been under Dr. Vivian’s care when she attempted suicide and shortly thereafter died. Her family sued. A jury returned a verdict in favor of Dr. Vivian, concluding that he was not negligent in his assessment and care of the patient.

The family appealed, arguing that Dr. Vivian’s statements should have been admissible. The Ohio Supreme Court determined “apology” under R.C. 2317.43, meant a “statement that expresses a feeling of regret for an unanticipated outcome of the patient’s medical care and may include an acknowledgement that the patient’s medical care fell below the standard of care.” On this reasoning, the Ohio Supreme Court held Dr. Vivian’s statements were protected under Ohio’s apology statute and were inadmissible at trial as evidence of liability. Now, a physician’s apology may include an admission of fault and still be protected under Ohio’s apology law.

Physicians Don’t Think Saying “I’m Sorry” Helps Lawsuits

Carol Peckham, the current director of editorial services at Art Science Code, LLC, published a report on why most doctors get sued. For the report, “Medscape surveyed nearly 4,000 primary care physicians and selected specialists to find out if and why they were sued, how the lawsuit affected their career and patient care decisions, and what these doctors suggest to reduce the number of lawsuits. The report shows the long-term effects, both emotional and financial, of malpractice suits on vulnerable doctors.”

The survey respondents were asked if saying “I’m sorry” would have helped. Only 3% thought that saying, “I’m sorry,” would have helped. Seventeen percent said they did not know if saying, “I’m sorry,” would have helped. A significant portion—81%—responded, “No.”

There were also verbal responses to this question. The verbal comments revealed, “most physicians reported that they didn’t say they were sorry because it wasn’t their fault, that it would have made no difference, or they were among many others named and hadn’t even met the plaintiff. More than a few said that greed was the motivating factor of the suit. Those who reported that they had expressed sorrow said that it would not have made a difference.”

State Apology Laws May Increase Risk of Lawsuits

The effect of state apology laws on medical malpractice claims is largely unknown. In a recent Stanford Law Review article, authors Benjamin J. McMichael, R. Van Horn, and W. Kip Viscusi explored the unknown effect of state apology laws. For their research, they were able to use a dataset obtained from a large malpractice insurer. The researchers examined the malpractice claims against 90% of physicians in the country who practice within a single specialty over an eight-year period.

The researchers concluded that “apology laws increase rather than limit medical malpractice liability risk.” The study looked at data for physicians in both surgical and nonsurgical fields. For physicians who regularly perform surgery, the researchers concluded that “apology laws do not have a substantial effect on the probability of facing a claim or the average payment made to resolve a claim.” This is due in part to the patient’s knowledge of potential risks. Patients having surgery are typically aware of the potential risks.

The researchers also concluded that when the physician has greater knowledge of the risks, “the apology provides information that the patient does not have, thus providing a possible incentive to pursue a claim even though the apology cannot be introduced as evidence.” The study also found that for physicians in nonsurgical fields, apology laws “increase the probability of facing a lawsuit and increase the average payment made to resolve a claim.”

When and How Should Physicians Apologize?

Some professionals believe that physicians should apologize. What is an apology? An apology is an admission of error or discourtesy accompanied by an expression of regret. There are countless articles available for physicians explaining how to apologize.

Richard G. Roberts, M.D., J.D., F.A.A.F.P., F.C.L.M., a professor and past chair in the Department of Family Medicine at the University of Wisconsin School of Medicine & Public Health in Madison, Wisconsin, published an article on the art of apology and emphasized the importance of knowing when to apologize, as well as how to deliver the apology.

Roberts states that an apology should be considered “when the outcome is unwanted or unexpected, people are unhappy, or errors are suspected.” In evaluating whether or not an apology is needed, you must get the facts. Gathering the facts allows you to understand what happened. Questions to ask when gathering the facts include: “What happened, exactly? What are the perspectives of the other members of the care team? What was the proper procedure for the condition in question, and was it followed? Was there an error?”

If you believe that an apology is warranted, then providing an apology can include several parts. Aaron Lazare (deceased), M.D., former Chancellor and Dean of University of Massachusetts Medical School in Worcester, Massachusetts spent much of his career studying the apology process.

Lazare wrote that the parts of an apology include “acknowledging responsibility, offering explanations, expressing remorse, and discussing reparations.” He concluded, “Without such offerings, most patients in response to such disclosures would more likely be offended than soothed.” While much of Lazare’s research was done prior to and during the passage of state apology laws, the components of apologies have remained unchanged.

Be Informed

Choosing whether to apologize remains a personal choice (or a company policy). Whatever you choose, you should be aware of your state’s law regarding apologies.

NCSL has compiled a list of states and their “Statutes Related to Apologies and Other Sympathetic Gestures Generally” and “Statutes Related to Apologies and Other Sympathetic Gestures Related to an Accident.” These lists are a great starting point for physicians who would like to know more about how the state where they practice medicine deals with apologies.

Statutes Related to Apologies and Other Sympathetic Gestures Generally

Statutes Related to Apologies and Other Sympathetic Gestures Related to an Accident