“I’m Sorry” Laws and Lawsuit Risk
Miscommunication or poor communication between health care providers and patients or their families—particularly in the event of an adverse outcome or incident—is known to result in increased numbers of malpractice lawsuits. When health care providers have the opportunity to express condolences or apologies to patients and families without fear of having those words used against them in court, it can go a long way toward defusing many situations and can reduce malpractice claims.
That’s the reasoning behind the increasing trend of “I’m Sorry” or “apology” legislation, which is currently on the books in 36 states. The state legislatures enacting these laws hope to change the previously prevailing culture in which health care providers denied all wrongdoing, whether or not such denials were justified.
A simple apology can diffuse the anger a patient or their family feels when a mistake has occurred, and many health care institutions have found that their self-disclosure policies have resulted in fewer and less expensive malpractice lawsuits.
“I’m Sorry” laws vary from state to state, so it’s important for health care providers to be aware of what language is protected in what circumstances in the state(s) in which they practice. In some states, only statements of sympathy are protected. In other states, a health care provider can include an admission of fault or negligence in their apology and still be protected from having that admission used as proof of liability in court.
Even with “I’m Sorry” laws in place, health care workers need to be aware of their employer’s policies on admitting responsibility for medical errors. Some health care institutions are actually ahead of the curve with voluntary self-disclosure policies that pre-date their states’ legislation. Others still maintain a more guarded approach, so you should make sure you know the policies before an incident arises.
It’s also a good idea for health care providers to consult the terms of their liability insurance policies to see where the insurer stands on apologies that admit fault, regardless of the laws of their state. Many insurance companies still recommend against admitting mistakes or errors even if the state law offers some protection.