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Apology laws: Protecting the right to say “I’m sorry”

 

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I’m sorry

Here’s one case’s background: After taking Tylenol 3 after dental work, a woman went to a Utah emergency room needing treatment due to an allergic reaction. The emergency room physician ordered subcutaneous administration of epinephrine and two other medications to be administered intravenously. The nurse administered all three medications intravenously.

The woman cried out in pain, her heart began palpating, and she was transferred to the hospital’s ICU for observation. During the course of her treatment, her physician said, "I’m really sorry. There was kind of a complication. We messed up." The woman filed an action for malpractice and sought to admit into evidence the statements of the physician.

Utah has an "apology statute," which provides that in medical malpractice actions, statements or conduct of a health care provider expressing "apology, sympathy, commiseration, condolence, or compassion; or a general sense of benevolence" are not admissible in court.

When is "I’m sorry" protected?

Apology statutes (also referred to as "I’m sorry statutes") have been adopted in 37 states. The most recent state to adopt such a statute was Wisconsin, which enacted its law in the spring of 2014.

The scope of the laws vary, and it is important for physicians to know which statements are protected and which are not. The most common laws are similar to the statute in Utah and focus on statements reflecting sympathy or condolence.

Some states, such as Colorado, go a step further and prohibit admission into evidence of expressions of fault as well as expressions of sympathy.

The Utah Court of Appeals ruled that the physician’s statements that "I’m really sorry" and "There was kind of a complication" were inadmissible under the state’s apology rule. On the other hand, the statement that "We messed up" was considered to be an admission of fault and, therefore, admissible against the physician and hospital. (In this case, the verdict was nonetheless in favor of the health care providers since the plaintiff did not present sufficient evidence of injury resulting from the breach of standard of care.)

The purpose of apology statutes

Apology statutes create an exception to legal principles that usually allow a defendant’s "admissions" or "admissions against interest" to be used in evidence. A person’s admission of wrong-doing or an apology are relevant to determining if the person did something wrong, but there also can be reasons for not allowing admission of such evidence in court.

The policy behind apology statutes is to promote better communication between providers and patients. Apologies are a way of showing respect to the patient and providing more of an opportunity for closure.

They also are consistent with a physician’s ethical duties. The AMA Code of Medical Ethics, Opinion 8.12 states:

"Situations occasionally occur in which a patient suffers significant medical complications that may have resulted from the physician’s mistake or judgment. In these situations, the physician is ethically required to inform the patient of all the facts necessary to ensure understanding of what has occurred. Only through full disclosure is a patient able to make informed decisions regarding future medical care."

Effect of liability on costs

Although the research is not definitive, there is evidence that apology statutes can reduce medical liability costs. Patients and family members to whom explanations are given tend to be less angry and more likely to settle for a lower amount than if no explanation or expression of apology was made. And, in some cases, the patients may choose not to file suit.

In addition, the statutes in some states require that in order to obtain the protections of the apology statute, the statement of apology must be made within 30 days of the adverse event. Vermont and Washington are states that apply such a time limit.

Apologies or admission of fault can be difficult. The individual making the apology may fear loss of face or exposure to liability. The laws of most states offer some protection, and at least in some cases, the expression of apology can improve the physician’s relationship with the patient and the patient’s family.

Jeff Atkinson teaches health care law at DePaul University College of Law in Chicago.

 

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