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"I'm Sorry" Legislation and Medical Malpractice Liability

"I'm sorry" laws generally absolve physicians and other health-care providers from liability resulting from expressions of apology or condolence after an unanticipated outcome of medical care. As of 2011, 36 states have passed a form of "I'm sorry" legislation. Physicians and other health-care providers should pay close attention to their state's legislation, because despite having a similar purpose, the laws vary greatly in what language is protected and under what circumstances. Most states only protect expressions of apology and condolence (e.g., Nebraska and Iowa), but some states go as far as protecting expressions of fault (e.g., Colorado).

The reasoning behind the "I'm sorry" movement is simple: decrease the number of malpractice claims resulting from poor communication between provider and patient. Physicians, nurses, and other health-care providers are often discouraged from confronting patients and their families when something goes wrong during treatment because they are worried their statements may be used against them in future litigation. Studies have shown, however, that this lack of communication following an adverse outcome is the primary reason for malpractice litigation; lawsuits are more about communication than monetary compensation. Incomplete, evasive, or nonexistent explanations increase patient distress compared to complete, honest, and compassionate disclosures. Apologies have been shown to not only decrease the incidence of lawsuits, but patients or family members that have received an apology are more likely to accept settlements when lawsuits arise. By making statements of apology inadmissible in future litigation, legislatures hope that health-care providers will re-open the lines of communication with patients, resulting in lower costs associated with medical malpractice claims.

Despite claims that increased rates of admission will only increase malpractice litigation, some success has been realized in applying the "I'm sorry" principal in practice. It has become increasingly common for providers to implement formal policies requiring medical staff to promptly admit and apologize for mistakes. The University of Michigan Health System saw its annual malpractice claims and legal expense per claim drop by almost 50% from 2001-2004 after implementing a similar policy. This success came well before any legal support for the policy-Michigan did not pass "I'm sorry" legislation until April of 2011.

It is the hope of state legislatures that "I'm sorry" laws will foster an open line of communication between doctors and patients, resulting in decreased costs associated with medical malpractice claims. Both Nebraska and Iowa have enacted "I'm sorry" statutes (Neb. Rev. Stat. § 27-1201, Iowa Code § 622.31), shielding statements of apology from admissibility as evidence of an admission of liability. Despite common misconceptions, empirical evidence seems to support a policy of being "sorry," rather than "safe," as potentially the best practice for health-care providers. Surely only time will tell, but providers should at least consider re-establishing a policy of greater communication between provider and patient.

© 2011 Vandenack Weaver LLC

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