Borrowing from Elton John, “sorry seems to be the hardest word.” If you’re a medical professional, saying you’re sorry also might not help you avoid getting sued for malpractice.
According to a recent Vanderbilt University analysis of insurance data, laws designed to reduce malpractice lawsuits by protecting doctors who apologize to patients for bad outcomes don’t work as well as we might believe.
“What we find is that no, people sue for money. ‘Sorry’ is not enough,” Larry Van Horn, the executive director of health affairs at Vanderbilt’s Owen Graduate School of Management, told Insurance Journal.
Several dozen states have these apology laws on the books. They vary from state to state but generally, the idea is that an expression of remorse from the physician will somehow cause patients to drop any notion of seeking economic sanctions by heading to court.
Here’s Colorado’s apology statute:
“In any civil action brought by an alleged victim of an unanticipated outcome of medical care … any and all statements … expressing apology, fault, sympathy, commiseration, condolence, compassion or a general sense of benevolence … shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.”
In other words, statements of “fault” by the doctor cannot be used against him/her.
Of course, a physician who is emotionally invested in a patient often feels compelled to express condolences after a poor medical outcome. In addition, a physician’s integrity and honesty serve as compelling reasons for apologizing.
Yet apologizing doesn’t do much good and, as the Vanderbilt team found, can do harm.
Relying on data from one of the bigger malpractice insurers, Van Horn and the other researchers analyzed malpractice claims for about 9,000 providers, including surgeons. Overall, about 4 percent of these physicians experienced a malpractice claim over the course of eight years. About two-thirds of all claims went to court.
Among surgeons, they found apology laws made no difference in either the number of claims or the share of those claims that ended up in court.
For non-surgeons, however, claims in apology-law states were 46 percent more likely to result in a lawsuit.
How to explain that?
The researchers surmised it’s because a doctor who apologizes for overlooking a symptom in a sick patient is generally drawing attention to a mistake that would likely have gone unnoticed by the patient.
Even more dramatic was the change in payouts from successful lawsuits. Again, surgeons didn’t see a great difference, but non-surgeons did. In states with apology laws, the payouts to patients of non-surgeons more than doubled compared to states without apology laws.
The good news is that lawsuits and payouts were lower in health systems that provide training to their providers on when and how to apologize.
So, what’s the bottom here?
In the wake of a medical error, patients have a right to know what happened. There’s no contesting that point. But apology laws alone aren’t doing much to reduce malpractice cases.
Brian Parks is CCIG’s Commercial Lines VP of Sales. Reach him at Brian.Parks@thinkccig.com or at 720-330-7923.
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