Narrative Review: Do State Laws Make It Easier to Say “I'm Sorry?”

Abstract

Initiatives intended to reduce the frequency and impact of medical errors generally rely on recognition and disclosure of medical errors. However, fear of malpractice liability is a barrier to physician disclosure. Some U.S. state legislatures have attempted to encourage physicians to disclose medical errors by enacting "apology laws." The authors reviewed the codified statutes of each of the 50 states and the District of Columbia to determine the prevalence and characteristics of such apology laws. They found that many states have recently adopted apology laws and that there is variability in these laws. The authors review some of the important differences in these laws and explore the potential impact of apology laws.

Disclosing Harmful Mammography Errors to Patients

“…While some studies (26,36) have suggested that disclosure of errors might actually reduce the chance that patients will sue, the actual effect of disclosure on litigation remains hotly contested. Many states have adopted "apology laws" to encourage disclosure, but the legal protections provided by most of these laws are minimal (21,37). Definitive research clarifying the relationship between disclosure and litigation would allow disclosure guidelines to be more firmly evidence based.…”

Disclosure of Adverse Events in Pediatrics

“…40 Some lawmakers have attempted to encourage physician disclosure and apology by reducing this legal risk through legislative changes to the hearsay rule exceptions. 30,33,41 Many state legislatures have attempted to encourage disclosures and apologies by adopting "apology laws, " intended to encourage physician-patient communications about AEs by limiting, or even completely excluding, plaintiffs' ability to use such communications as evidence against the physician in later litigation. 30,41 "Sympathy-only" apology laws bar the use of physician expressions of sympathy by plaintiffs at trial to prove negligence but do permit plaintiffs to use physician statements that expressly admitted fault.…”

“…30,33,41 Many state legislatures have attempted to encourage disclosures and apologies by adopting "apology laws, " intended to encourage physician-patient communications about AEs by limiting, or even completely excluding, plaintiffs' ability to use such communications as evidence against the physician in later litigation. 30,41 "Sympathy-only" apology laws bar the use of physician expressions of sympathy by plaintiffs at trial to prove negligence but do permit plaintiffs to use physician statements that expressly admitted fault. 30 On the other hand, "admission of fault" apology laws prevent plaintiffs from using virtually any previous physician disclosures to the patient and family, even when the physician admitted responsibility for an ME or other improper care, to prove negligence at trial.…”

On Patient Safety: Do You Say “I'm Sorry” to Patients?

“…Many states have apology laws, but they vary. Some states like Colorado and Washington will protect an apology of fault [8], while others may protect an apology that expresses sympathy, but not fault. The drive behind these laws was to promote and protect open communication.…”