Apology Not Accepted: When Saying 'I'm Sorry' Isn't Enough

For surgeons, 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, apology laws made things worse.

Laws enacted in 39 states over the past two decades with the aim of reducing malpractice litigation by shielding doctors who apologized for botched care aren't working as they were intended to, a new study has found.

In a study in Stanford Law Review, researchers at the University of Alabama and Vanderbilt University examined data from a major malpractice insurer—which the researchers declined to identify—for 90% of providers in a single specialty composed of surgeons and non-surgeons, about 9,000 providers.

Overall, about 4% of these physicians experienced a malpractice claim over the course of eight years. About two-thirds of all claims went to court.

For surgeons, the researchers 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, apology laws had a dramatically worse effect. While the overall number of claims was unchanged in states with apology laws, those claims were 46% more likely to result in a lawsuit.

Study co-author Benjamin J. McMichael, an assistant professor at the Alabama's Hugh F. Culverhouse Jr. School of Law, says that's probably because surgical errors are usually more obvious than non-surgical errors.

For example, a patient will know that a sponge left inside the body is a surgical mistake, but will probably not have the expertise to know whether their worsening illness is due to bad luck or an overlooked symptom, he said.

That is, unless the doctor apologizes for it. The study found that, in states with apology laws, the payouts to patients of non-surgeons more than doubled compared to states without apology laws.

"The idea of the laws is to make patients less angry so they're going to settle for less," McMichael says. "But what I think is happening is you have this apology law, doctors apologize more often, and it sends the signal of malpractice to patients."

"Their beliefs are confirmed. 'I know something's gone wrong, I'm going to go out and seek all the evidence I can,'" McMichael says. "They get more evidence. They get better evidence, because their beliefs are confirmed on the front end. And with this additional evidence, they don't settle for less. They stay in the case longer. They get bigger verdicts, and they get better, bigger settlements."

Making Apologies Work
 

Despite the data suggesting otherwise, McMichael says there are clear psychological benefits to apologizing for both physician and patient.

McMichael and coauthor Larry Van Horn, associate professor of management and executive director of health affairs at Vanderbilt's Owen Graduate School of Management, say health systems need to train providers on when and how to apologize.

"When you apologize, there's a way to do it, and there's a way not to do it, and if you put it the wrong way, you can end up making people even angrier," McMichael says. "Say you come in a week later, or you send a lackey to deliver the news, or you do it through a phone call or a text message."

It's also a good idea to have an explanation for why a procedure or diagnosis went wrong, and to have some sort of settlement or offer to fix the problem in mind when telling patients about medical errors, he says. 

What is to be done in the 39 states that have these ineffective apology laws?

"That's one place where we kind of take a step back," McMichael says. "The purpose of the paper is really to evaluate apology laws as they've been pitched by state legislature. Assuming state legislatures want to reduce malpractice litigation, apology laws aren't the way to go."