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“I’m Sorry” Bills: Stripping Personal Responsibility from Medical Malpractice Apologies

The Fairbanks Daily News-Miner reports that the Alaska Legislature has unanimously passed a bill that would make expressions of apology or compassion inadmissible in medical malpractice trials. Kurt Olson, the bill’s sponsor says his goal is to improve doctor-patient relationships. However, this type of bill strips apologies by medical professionals of any true meaning and act is just one more protection for the powerful insurance and medical industries. This is because, along with protecting so-called apologies, the bill also actively discourages the physician from admitting negligence.

Whether a doctor or other medical professional’s error leads to a personal injury claim, or an even more tragic wrongful death claim, a true apology can be extremely meaningful. Dr. Jennifer K. Robbennolt, PhD, JD has done a study on the effectiveness of apologies in the medical error context. She defines apologies as “statements that acknowledge an error and its consequences, take responsibility, and communicate regret for having caused harm.” However, a law like the one passed by the Alaska legislature eliminates on important part of that definition: taking responsibility.

Real Apologies Heal Doctor-Patient Relationships
According to her study, real apologies can achieve the bill’s sponsor’s goal of improving doctor-patient relationships. But a useful apology must admit fault and take responsibility. Patients care about three things when it comes to medical error: they want to understand what has happened to them, they want to receive an apology, and they want to prevent similar errors in the future. In fact, 98% of patients harmed by medical error wanted or expected the physician to acknowledge the error. Dr. Robbenolt similarly found that people who wind up filing medical malpractice law suits often want to make sure no one else is injured in the way they were, and want to doctors who hurt them to realize what they have done.

The study also shows that doctors who make errors and who realize their errors often want to make a meaningful apology. This bill may seem, on its face, like it allows for that. But instead it encourages doctors to avoid meaningful apologies and instead use words of so-called apology without accepting responsibility.

This is not just bad for the patients. It is also bad for the physicians. Dr. Robbennolt found that physicians are profoundly affected by medicals errors. One described the “sickening realization of making a bad mistake.” While they have plenty of selfish fear regarding their own reputations or the repercussions, many doctors also experience worry and guilt for their patients and stress over the harm done to the relationship.

These doctors want to make meaningful apologies. And in some cases they do. There is a misconception that apologies without a law like the one in Alaska (and 2/3 of the other states) are deadly to a medical practice, but its simply not true. Robbenolt notes in her paper that no link between the risk of litigation and willingness to disclose error has been established. Further, most injured patients do not sue, doctors over-estimate the risk of being sued, and real apologies actually make victims of medical error less likely to sue.

Medical errors hurt patients in a wide variety of ways-some financial and some less tangible. Those less tangible injuries can often be healed with a meaningful apology. Legislation that discourages acceptance of responsibility by doctors eliminates a meaningful method of healing both the patient and the doctor-patient relationship.

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