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

Benjamin J McMichael1, R Lawrence Van Horn2, W Kip Viscusi3

  • 1Hugh F. Culverhouse Jr. School of Law, University of Alabama.

Stanford Law Review
|March 19, 2019
PubMed
Summary
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Apology laws aim to reduce medical malpractice litigation by making physician apologies inadmissible in court. However, evidence suggests these laws may not effectively decrease overall liability risk for physicians.

Area of Science:

  • Medical Law
  • Health Policy
  • Tort Reform

Background:

  • Physician apologies can foster patient healing and dispute resolution.
  • Thirty-nine states have enacted apology laws to reduce medical malpractice litigation.
  • These laws assume apologies decrease patient claims and increase settlements.

Purpose of the Study:

  • To critically evaluate the effectiveness of apology laws in reducing medical malpractice litigation.
  • To provide new evidence on the impact of apology laws on liability risk.
  • To analyze how apology laws affect both the frequency and magnitude of malpractice claims.

Main Methods:

  • Analysis of a unique dataset of medical malpractice claims from a large national insurer.
  • Examination of claims data for 90% of physicians in a specific specialty over eight years.

Related Experiment Videos

  • Decomposition of medical malpractice liability risk into claim frequency and claim magnitude.

    • Main Results:

    • Despite widespread adoption, there is limited evidence that apology laws achieve their intended goal of reducing litigation.
    • Apology laws may paradoxically increase a patient's incentive to pursue a claim after learning of a medical error.
    • The overall impact of apology laws on medical malpractice liability risk remains uncertain, potentially leading to increases or decreases.

    Conclusions:

    • Apology laws, a common tort reform, may not be effectively reducing medical malpractice litigation.
    • Further research is needed to understand the complex effects of apology laws on physician liability.
    • Unique datasets from malpractice insurers offer deeper insights into the litigation landscape than publicly available data.