by Barbara Basler, AARP Bulletin, - December 2, 2008
Doctors are notoriously reluctant to admit medical mistakes and apologize to their patients, but a growing number of states now have “I’m sorry” laws to encourage physicians to do just that.
Today 35 states and the District of Columbia have laws making apologies for medical mistakes inadmissible in court, according to a survey in the Dec. 2 Annals of Internal Medicine. Patients who suffer adverse outcomes can still sue, but they can’t use these conversations in court.
In an era of expensive lawsuits over adverse medical outcomes, these laws are part of a movement to promote the quick and open disclosure of mistakes in order to improve health care and better protect patients from future foul-ups. The movement was triggered by several landmark studies, including a 1999 Institute of Medicine report that said preventable medical errors cause as many as 98,000 deaths a year.
“One of the enduring problems of medicine and every other field is that human beings make errors, and they always will, so we have to learn how to build systems that prevent those errors,” says the study’s coauthor, William McDonnell, M.D., who teaches at the law school and the medical school at the University of Utah. “Identifying errors is a key to preventing them in the future, and disclosure may be one of the best ways to identify them.”
These laws, he says, are an attempt to create a more open system, where medical mistakes can be discussed candidly, and are in no way meant to limit a patient’s legal rights when it comes to malpractice claims.
Rebecca Dresser, a professor of law and medical ethics at the University of Washington in St. Louis who has studied apology laws, adds that “they should not be the only focus of this reform. Doctors and hospitals need to offer speedy compensation—reasonable payments to the patient, without the costs of litigation, as well as apologies.”
Eight states not only protect expressions of sympathy and regret but also a doctor’s admission of error. Four states have laws that require doctors and hospitals to inform patients of medical mistakes that lead to adverse outcomes.
“Evidence suggests,” the survey says, “that patients and their families benefit substantially when physicians disclose medical errors, express sympathy, and apologize.”
“In study after study, patients have said what’s important to them is information—learning what went wrong and why, and how it can be prevented in the future,” says McDonnell. The vast majority of malpractice victims don’t sue, but “they want someone to take responsibility for the mistake,” he says.
A growing number of patient advocates, risk managers, and health care providers say that when doctors admit mistakes, apologize, and offer quick, reasonable settlements to a patient, all parties tend to benefit. In 2005 Sens. Hillary Clinton, D-N.Y., and Barack Obama, D-Ill., proposed the National Medical Error Disclosure and Compensation Act, which emphasized disclosure, apology, and early compensation. The bill never made it to the Senate floor, but some experts expect it to surface again in some form.
There is early evidence of the efficacy of this approach, the survey says: The University of Michigan health system reports that since it adopted such a policy in 2001, it has seen a marked reduction in malpractice claims and has saved money on legal fees. Claims and lawsuits dropped from 262 in 2001 to 83 in 2007.
And after one Veterans Administration hospital adopted the full disclosure, apology, and fair settlement practice, it too had fewer and less expensive medical claims. The VA was so impressed with the hospital’s experience that it adopted the policy at all hospitals in its system.
McDonnell says many of these laws were passed within the last five years, so it is too early to tell whether they have promoted disclosure and reduced medical errors or cut down on lawsuits. In fact, some studies predict disclosing medical errors to patients may unleash a wave of settlement claims, he says.
“The laws are new, and we won’t know what effect they will have until more doctors and patients are aware of them,” McDonnell says. But regardless of whether they reduce litigation costs, “the evidence that patients and their families receive tangible benefits from the act of disclosure and apology itself may be sufficient justification for apology laws.”
Barbara Basler is a senior editor at AARP Bulletin Today.
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