People become doctors because they want to help people. It’s only natural that if something goes wrong, even if there was nothing they could have done to prevent it, they want to tell the patient and their family that they’re sorry about what happened. However, doctors have long been discouraged from doing that out of concern that an apology could open them up to medical malpractice claims and lawsuits.
In order to attempt to shield doctors from these actions, a number of states, including Florida, have passed some type of “apology law.” Florida’s law states, in part, that expressions of sympathy “shall be inadmissible as evidence in a civil action.”
It’s important to note that the law goes on to say, “A statement of fault, however, which is part of, or in addition to, any of the above shall be admissible pursuant to this section.”
A study found a difference between surgical and non-surgical errors
Do these laws have the intended effect of reducing claims and lawsuits? According to one study, they don’t. The study, which analyzed insurance data, found that in fact, an apology can actually increase the chances of a malpractice suit – at least for non-surgeons. Claims against non-surgeons in states with apology laws were 46 percent more likely to end up in court. Further, payouts were more than twice as high for non-surgical malpractice suits in the apology law states.
The study’s authors speculated that this is because surgical errors are often more readily apparent and easier to pinpoint where something went wrong. That’s less so for non-surgical errors. A patient might not even be aware that their condition was the result of medical negligence or error until their doctor apologizes.
More training and changes to laws can make a difference
The study’s authors contend that more training of doctors in how to apologize might help. For example, patients tend to want not just an apology but a clear explanation of what happened. The latter isn’t covered in most apology laws. That’s one area where they say these laws can be improved. As noted above, Florida law doesn’t cover specific apologies.
Of course, even if a doctor’s apology can’t be used against them as evidence in court, there may be plenty of other evidence that can be. That’s why having a strong defense is crucial.