In Medical Malpractice Cases, a Simple Apology Can Go a Long Way
By Shira Adler Crittendon


Imagine that in the course of doing your job, someone gets injured as a result of your conduct.  Basic human decency compels you to apologize.  In the case of medical providers, however, attorneys have traditionally feared that an apology could later be used as an admission for wrongdoing in court.  Apologies are valuable nevertheless and important in maintaining that level of trust between physicians and patients.  Further, studies have shown that many patients file lawsuits in order to get information about and understand their injury, to determine accountability, and to prevent future injuries. As such, state legislatures have recognized a need to protect the medical provider from liability to allow the medical provider to provide the apology and information the patient and/or family is seeking. 

Generally, apology statutes permit a medical provider to apologize to an injured patient without the apology being introduced into evidence as an admission of guilt or liability.    Massachusetts was the first state to adopt an “I’m sorry” statute in 1986.  In 2007, the American Bar Association passed a resolution supporting the enactment of statutes that prohibit the admission of sentiments of apology.  Currently, thirty-five states and the District of Columbia have either statutes or rules of evidence that prevent the use of apologies as evidence of fault in medical malpractice cases.  The language of each statute differs, with different states offering different levels of protection in the case of apologies.  Some states protect the full apology, while some states, like California, only protect words of sympathy and not statements of fault.

In 2005, Georgia became one of the states to enact an “I’m sorry” statute.  Georgia’s statute is relatively broad.  Specifically, the statute states that, “In any claim or civil action brought by or on behalf of a patient allegedly experiencing an unanticipated outcome of medical care, any and all statements, affirmations, gestures, activities, or conduct expressing benevolence, regret, apology, sympathy, commiseration, condolence, compassion, mistake, error, or a general sense of benevolence which are made by a health care provider or an employee or agent of a health care provider to the patient, a relative of the patient, or a representative of the patient and which relate to the unanticipated outcome shall be inadmissible as evidence and shall not constitute an admission of liability or an admission against interest.”

Because the vast majority of the thirty-six apology statutes mentioned above were enacted fairly recently, there is little conclusive data chronicling their impact.  However, the University of Michigan Health Systems (“UMHS”) has conducted extensive research regarding the effectiveness of apologies and issued promising findings.  The results of the UMHS study show an over 60% decline in pre-suit claims and lawsuits and a 50% decline in their average legal expense per case since the initiation of its apology program.  According to another study based on medical errors that occurred in hospitals in Illinois, when healthcare providers tell patients about medical errors that happened under their care, the patient is twice as likely to recommend that provider to someone else than if they had not been told about the mistake. Results showed that injured patients were more inclined to accept settlement offers when given a full apology.  That being said, apologies expressing liability and simple apologies expressing only sympathy have different effects according to the study.  Apologies that accept responsibility are more likely to avoid litigation or impact settlement potential than limited or conditional apologies.

In light of the results of the studies on the effects of apologies, those concerned about medical malpractice claims should revisit the common belief that apologies are necessarily detrimental to one’s legal position.  Given the wide variance in each state’s statute and the complexities of each case, however, it is best to consult an experienced lawyer when crafting your apology to ensure it conveys your sympathies without opening the door to liability.

For more information, contact Shira Adler Crittendon at 770.818.1409 or [email protected].

 



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