71 Stan. L. Rev. 341 (2019)
Sorry Is Never Enough: How State Apology Laws Fail to Reduce Medical Malpractice Liability Risk

handle is hein.journals/stflr71 and id is 355 raw text is: 





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                                 ARTICLE

                 Sorry Is Never Enough:
   How State Apology Laws Fail to Reduce
       Medical Malpractice Liability Risk


   Benjamin J. McMichael, R. Lawrence Van Horn & W. Kip Viscusi*

Abstract. Based on case studies indicating that apologies from physicians to patients can
promote healing, understanding, and dispute resolution, thirty-nine states (and the
District of Columbia) have sought to reduce litigation and medical malpractice liability by
enacting apology laws. Apology laws facilitate apologies by making them inadmissible as
evidence in subsequent malpractice trials.
The underlying assumption of these laws is that after receiving an apology, patients will
be less likely to pursue malpractice claims and will be more likely to settle claims that are
filed. However, once a patient has been made aware that the physician has committed a
medical error, the patient's incentive to pursue a claim may increase even though the
apology itself cannot be introduced as evidence. Thus, apology laws could lead to either
increases or decreases in overall medical malpractice liability risk. Despite apology laws'
status as one of the most widespread tort reforms in the country, there is little evidence
that they achieve their goal of reducing litigation.
This Article provides critical new evidence on the role of apology laws by examining a
dataset of malpractice claims obtained directly from a large national malpractice insurer.
This dataset includes substantially more information than is publicly available, and thus
presents a unique opportunity to understand the effect of apology laws on the entire
litigation landscape in ways that are not possible using only publicly available data.
Decomposing medical malpractice liability risk into the frequency of claims and the
magnitude of those claims, we examine the malpractice claims against 90% of physicians in
the country who practice within a particular specialty over an eight-year period.



  Benjamin J. McMichael is Assistant Professor of Law, Hugh F. Culverhouse Jr. School of
  Law, University of Alabama; R. Lawrence Van Horn is Associate Professor of
  Management and Law and Executive Director of Health Affairs, Owen Graduate School
  of Management, Vanderbilt University; and W. Kip Viscusi is University Distinguished
  Professor of Law, Economics, and Management, Vanderbilt University Law School.
  For helpful comments on earlier drafts of this Article, we wish to thank participants at
  the American Law & Economics Association 2017 Annual Conference and the Southern
  Economic Association 2016 Annual Meeting.

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