Despite the efforts of medical professionals, some patients face tragic outcomes due to medical errors. In this case, the patient's family members may expect an apology, and most healthcare workers would express sympathy. Unfortunately, issuing an apology can land a healthcare provider in legal trouble under many state laws.
"I'm sorry" laws are state legislation that protects healthcare providers from civil or criminal liability for offering sincere condolences following a poor medical outcome. And beyond allowing healthy communication in healthcare environments by enabling providers to more authentically engage with their patients, apologies can significantly impact adverse event cases. A study in CLM found that 37 percent of patients feel they could have avoided a lawsuit with an explanation & apology.
But depending on the location of a health practitioner, the boundaries of when and how they can say 'sorry' varies, and not all 'I'm sorry' laws o ffer the same level of protection.
States with a partial protection law off er protection to many apologies, except
for apologies that admit fault. For example, “I am sorry that you were injured during surgery” would be protected. However, “I am sorry that you were injured because I nicked an artery during surgery,” would not, according to CLM.
A total protection of apology law takes security further. Under an absolute protection law, all apologies, expressions of sympathy, fault, or commiseration cannot be used as evidence in any case resulting from the unanticipated outcome.
General Apology Statutes provide a broader definition of an acceptable apology in healthcare, covering accidents in any industry that may result in a civil action. Usually, they do not protect statements of fault. For example, California's apology statute protects written or verbal expressions of sympathy for patients and their families, but words of guilt can still count against providers in court.
Apologies, when permitted, can ease the claim resolution process in the long run while reducing tensions between families and providers. Medical plaintiff attorney Joshua Silverman, told Medplace about the importance of an early and sincere apology.
As they say, if you're in a hole, the first thing you need to do is stop digging. If you need to say you're sorry, say you're sorry. For example, Virginia's apology statute says that an apology can't be used against you as long as it's a general apology. So 'I am sorry that your mother passed away; she was a lovely lady.' is fine. If it's, 'I'm sorry that I did X, Y and Z wrong'. That's a different story. But saying you're sorry goes a long way.
By reviewing local 'sorry' law protections, healthcare leaders can educate their staff on acceptable clinician apologies and kick-start their early resolution program. For more information, download the Medplace Early Resolution Toolkit below.