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19 Health Law. 23 (2006-2007)
Should Physicians Apologize for Medical Errors

handle is hein.journals/healaw19 and id is 99 raw text is: SHOULD PHYSICIANS APOLOGIZE FOR
MEDICAL ERRORS?

Norman G. Tabler, Jr., Esq.
Clarian Health Partners, Inc.
Indianapolis, IN
Traditionally, lawyers have advised
physicians not to apologize to patients
for medical errors. A number of factors
suggest that as a general rule, this
advice may no longer be in a physi-
cian's best interest. These factors
include medical error disclosure
requirements, state Apology Laws,
and, perhaps most importantly, research
on the effect of physician apologies on
patients. The evidence indicates that as
physician apologies increase, civil
actions and financial recoveries by
patients will decline.
The Conventional View
Should a physician apologize
when he or she makes a mistake that
harms a patient? The conventional
view of lawyers is that the physician
should not apologize, on the theory
that the apology could be admitted in
evidence in a subsequent civil action
by the patient.' Nor would the hearsay
rule protect the physician, since apolo-
gies are generally admissible under the
exception for admissions or statements
against interest.2
Nonstatutory Disclosure
Requirements
It has become increasingly difficult
for physicians to adhere to this tradi-
tional advice over the years. For one
thing, the organized medical profession
(most notably the American Medical
Association (AMA)) has long held
that a physician has an ethical duty to
disclose a harmful error to the patient.'
This ethical requirement to disclose
errors does not have the force of law.
Furthermore, the medical profession
has consistently expressed the duty in a
very general way that leaves physicians

wide latitude in deciding when the
duty applies.4 And, of course, the duty
has never been construed to include an
obligation to apologize.
Nevertheless, in practice it may be
difficult for a physician to disclose (let
alone describe) an error without
expressing regret. What's more, when a
physician discloses an error without
conveying an expression of remorse, the
way in which the disclosure is made
may increase the unhappiness-and
anger-of the patient. The medical
profession recognizes this conflict and
directs that concern for liability must
not inhibit the physician's discharge of
the duty to disclose.5
In addition to the AMA's ethical
requirements, the Joint Commission
on Accreditation of Healthcare
Organizations (JCAHO) for years has
required hospitals to disclose harmful
medical errors that occur in the hospi-
tal environment. What's more, the
requirement includes the mandate that
the disclosure be made by the responsi-
ble physician (or a designee ... ).'6 Like
the AMA professional standards, this
JCAHO requirement lacks the force of
law and is expressed in a very general
way.' Also like the AMA professional
standards, the JCAHO requirement
includes no express duty to apologize.
Nevertheless, as with the AMA
standards, fulfilling the JCAHO
requirements can make the absence of
an apology conspicuous and awkward.
State Disclosure Laws
In recent years, states have begun to
add the force of law to the ethical and
regulatory rules that call for disclosure of
medical errors. As of this writing, at least
five states have enacted statutes mandat-
ing disclosure by hospitals of serious
errors: Florida, Pennsylvania, Nevada,
New Jersey, and Vermont.8 As noted,
disclosure often makes the absence of an

Volume 19, Number 3, January 2007

apology more conspicuous. A patient
who hears a physician (or hospital
representative) disclose an error without
apologizing may, in his or her mind,
hear the physician saying something
like, I made an error that harmed you,
but I'm not sorry.
State Apology Laws
Many states have now enacted so-
called Apology Laws, which mitigate
the conflict that a physician faces when
trying to meet the patient's desire (and
perhaps need) for an apology while
avoiding self-incrimination. Apology
Laws are statutes that change the tradi-
tional rule on admissibility of evidence
by declaring that apologies are inadmis-
sible in civil actions arising from alleged
medical errors.
Basically, Apology Laws fall into
two categories: 1) those that protect
apologies and also acknowledgments of
fault that accompany them; and 2) those
that protect apologies but not accompa-
nying acknowledgments of fault. The
Colorado statute is representative of the
first category. It addresses all civil
actions arising out of unanticipated
outcome[s] of medical care and makes
the following inadmissible as evidence
of an admission of liability: all state-
ments expressing apology, fault,
sympathy, commiseration, compassion,
or a general sense of benevolence,
made by any health care provider (i.e.,
an individual or institution licensed to
provide health care) or employee of a
health care provider.9
The Indiana Apology Law, which
took effect July 1, 2006, is representative
of the second category. It protects the
apology itself-i.e., the communication
of sympathy-but it does not protect a
statement of fault, even if made within
the context of the apology.'
A simple hypothetical example
illustrates the difference between the
continued on page 24
23

The Health Lawyer

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