According to research, 2 out of 10 medical malpractice claims result from poor communication or lack of acknowledgement of the adverse event. Studies at the University Of Michigan and University of Texas claim that acknowledging a bad result and apologizing (but NOT admitting fault) for the outcome statistically reduces the patient’s desire to litigate.
Over a dozen states, including Massachusetts, California, Florida, and Texas, have passed apology laws. These laws prevent the admission of “apologies” or “expressions of sympathy” in trials involving medical malpractice. The intent of the law is to prevent an adversarial relationship from developing with the patient, and helps start the conversation of what the patient and doctor can do “together” to rectify the problem. Healing feelings and diffusing anger goes a long way in minimizing the risk of a lawsuit and potential damage awards bey a jury.
It is very important to note a few things. 1. If you work for a hospital or clinic (i.e. not your own independent practice) you MUST first discuss issuing an apology or acknowledgement/sympathy to the patient, with your superiors. 2. If you believe an adverse event occurred, most attorneys would say you should alert your medical malpractice carrier and put them on notice of even a potential claim. Under most policies, the doctor must notify the insurance carrier as soon as the doctor has reason to know a claim may be brought.
3. Do NOT admit fault. There is a big difference legally from saying, I am so sorry for your result, verses, we made a medical mistake. You can tell the patient you sympathize with them and will work hard with them to help remedy the situation. Again, do not admit personal responsibility for any adverse outcome. Admissions of fault or negligence are admissible in trials.
3. Make sure, on the front end, you get very detailed INFORMED CONSENT (prior to any invasive procedure). Make the informed consent form as inclusive as possible for any foreseeable adverse outcomes.
4. Talk with a medical defense attorney BEFORE you speak with the patient or their family. Apology laws have been proposed in Minnesota but have not yet passed. Thus, what you say could come back to haunt you in court. In the end, my office suggests you do what is ethically required and check with your attorney and liability carrier to keep updated on this law.
Richard W. Hechter, J.D., MBA
Certified Civil Trial Specialist (MSBA)