Attorneys weigh impact of ‘I’m sorry’ laws

Alba Lucero Villa, Associate Editor

State lawmakers around the country have enacted a series of statutes that protect apologies made by health care providers for adverse medical events from being used in court.Whether the new laws will lead to increased disclosure of medical errors, and how they will affect medical malpractice suits, remain unclear.

At least 27 states have enacted so-called “I’m sorry” laws, according to the American Medical Association. The types of expressions covered under the laws and their level of protection vary from state to state. Colorado’s goes the furthest, extending immunity to explicit admissions of fault.

“I’m sorry” legislation is pending in Massachusetts, Nebraska, North Dakota, Rhode Island, South Dakota, Tennessee, Texas, and Utah. Most of the proposed bills mirror Colorado’s version of the law.

Plaintiff attorneys have differing views about the intentions behind these laws and their potential repercussions. Some say the statutes won’t aid disclosure at all; others suggest they will increase disclosure and facilitate settlement discussions. Most agree that their impact is yet to be seen.

“I believe in allowing our judges to make the determination on the admissibility of evidence and not lobbyists seeking to take away the discretion of judges,” said attorney Bill Bradley of Reno, Nevada, who testified against an “I’m sorry” bill that was quashed by the state legislature in May.

“Although victims and relatives are interested in the apology, they’re much more interested in a detailed explanation of how the system broke down and how they themselves or their loved ones were injured by medical negligence,” Bradley said. “If everyone was truly interested in addressing the concerns of patients and families, a detailed explanation of the series of events leading up to the tragedy would be readily made available and not hidden behind the protection of peer review.”

But attorney David Patton of Paradise Valley, Arizona, sees some benefits to apology laws such as the one his state adopted. “Granting immunity would probably encourage disclosure, which would lead to a greater likelihood of settlement,” he said.

Patton is also a board member of the Sorry Works! Coalition, a nonprofit group that includes doctors, lawyers, insurers, and patient advocates who push for disclosure of medical errors. The organization works with hospitals to implement “I’m sorry” programs, which require health care providers to disclose any adverse events to patients and relatives and inform them that the hospital will conduct an independent investigation to determine what went wrong. If the investigation concludes that the provider breached the standard of care, the hospital offers a settlement. Otherwise, it shares the results of the investigation but does not make a settlement offer.

“Doctors have traditionally been told to limit the information they give patients and family members, but now they’re being told to do the opposite,” said Doug Wojcieszak, the coalition’s founder, noting that secrecy is embedded in the culture of medicine and insurance.

“You don’t change 50 years overnight,” he said.

Wojcieszak, a political and public-relations consultant whose own brother died as the result of a medical error, noted that health care providers don’t need legislation to implement disclosure programs and warned that “I’m sorry” laws will not solve the problem of poor disclosure. “This is not a legislative problem, it’s a customer service problem,” he said.

“I’m sorry” programs may be a good alternative dispute resolution option, said Patton, noting that in some cases, they allow attorneys to resolve disputes with hospitals without involving defense firms.

Whether an apology is admitted or excluded from evidence probably won’t make or break a case, attorneys said. Andrew Greenwald, a medical negligence lawyer in Greenbelt, Maryland, noted that in many cases the plaintiff never received an apology from the defendant doctor or hospital, so granting immunity for apologies would not be “as big of an issue as it seems.”

“To preclude an admission of fault, however, is absurd,” Greenwald said. “This is a search for truth and justice. The more restrictive it becomes, the less it becomes a search for truth and the less justice is served.”