Doctors in 35 states and the District of Columbia can commiserate with patients or their families and worry less about legal repercussions.
That’s the view of William M. McDonnell, MD, JD, who teaches at the law school and medical school at the University of Utah in Salt Lake City. He and Elisabeth Guenther, MD, MPH, have compiled a status report on “apology laws” across the country as of March 31, 2008 (Ann Intern Med. 2008;149:811-815).
Citing an actual Colorado malpractice case, the authors give this example of a problematic statement: “I’m sorry about your father’s situation. Things might have turned out better had I been more up to date on current treatment options.” The first sentence is an expression of sympathy; the second could be construed as an admission of fault.
Of the 36 jurisdictions with apology laws, 28 protect voluntary expressions of sympathy or regret. The other eight also bar admissions of fault from evidence in malpractice suits.
These laws vary from state to state. For example, Vermont protects conversations but does not protect written statements of apology. The 15 states offering physicians no specific protection at all for their voluntary apologies are Alaska, Alabama, Arkansas, Kansas, Kentucky, Michigan, Minnesota, Mississippi, New Jersey, New Mexico, New York, Nevada, Pennsylvania, Rhode Island, and Wisconsin.
(Pennsylvania, New Jersey, Nevada, and Florida require hospitals to report incidents of medical error, but the mandates do not apply directly to physicians or their conversations.)
Apology protections are so new that their full impact can’t be evaluated yet, the authors note. Only two states had apology laws before 2000, and most statutes have been in effect for less than five years.
“Because they are so recent and because physicians remain unfamiliar with them, there is little evidence yet as to whether [these statutes] improve communication or reduce errors,” they conclude.
Citing the effective use of Virginia’s apology law in excluding a physician’s apology at trial in one 2005 malpractice case, Dr. McDonnell observes that, “In many states, apology laws may provide physicians with new opportunities to discuss the difficult issues surrounding adverse outcomes with their patients.”