“I’m Sorry” May Have No Impact on Medical Malpractice Lawsuits

The new popular wisdom that gained currency last year is that doctors who apologize for their mistakes are less likely to face a medical malpractice lawsuit than doctors who refuse to come clean. This supports what medical malpractice lawyers have long claimed: patients are often most angered by concealment of the malpractice and the concern that it will happen again to another patient.

KevinMD reports today an even more updated conventional wisdom, citing a study presented in the Journal of General Internal Medicine that says there is likely no correlation between a patient’s intent to bring a medical malpractice lawsuit and whether the doctor apologized.

medical malpracticeI question the study’s methodology, which relied on videos of actors pretending to be doctors with people trying to put themselves in the shoes of malpractice victims. A controlled study like this really takes the emotion out of a case and ignores the powerful dynamics of a relationship between a doctor and a patient (and the abject suffering experienced by most medical malpractice plaintiffs). You can’t believe the manufacturer in a “make-believe” study and expect meaningful data that translates to the actual world.

The results from the University of Michigan and the University of Illinois contradict this Journal of General Internal Medicine study. At Michigan, one of the first to experiment with full disclosure of malpractice, existing claims and lawsuits dropped to 83 in August 2007 from 262 in August 2001. The number of medical malpractice lawsuits against the University of Illinois has dropped by half in two years after it started its program.

I suspect that apologies help, but it does not change the obvious: when you hurt someone – either in the operating room or when you bump into them on the street – apologizing is the right thing to do. This social contract we all signed should really trump whether malpractice lawsuits increase or decrease.

Update #1: A 2010 analysis of “apology” and “disclosure” laws in 34 states and D.C also underscored the major laws in these laws.    This was not exactly hard to see coming.   But what they found is that these laws discourage comprehensive disclosures and apologies.  “We predicted just this – that the ‘I’m sorry’ laws would reveal their weaknesses when put to the reality test.” says Anna C. Mastroianni, a law professor at the University of Washington Law School.

Update #2: In March 2014,  a ruling by Utah’s Court of Appeals sensibly distinguishes between physician apologies that merely express sympathy for an unacceptable outcome and those that acknowledge responsibility.  Here, the doctor said, “I’m really sorry… We messed up.”   That is a real admission, and it is insane to let a trial proceed without acknowledging the allegation that the physician made that statement.   Squaring up this distinction between full “We made a mistake” apologies and “I’m so very sorry this happened” is critical to the integrity of the judicial process.  Otherwise, you could have a case where, hypothetically, a doctor could admit on videotape that he made a mistake and then walk into the courtroom and completely deny any negligence.

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