Learning to apologize is one of the first skills of etiquette children are taught. As children, we are taught that apologizing is important because it displays remorse over our behaviors and acknowledgement that our actions hurt someone else. As adults, we recognize that failing to apologize can often cause more pain than the underlying act.
Yet we find it difficult to say, “I’m sorry,” unless we truly believe we are at fault. This can be true even when we know the perceived offense is very real to the other person. The concept of an “apology law” recognizes this dilemma, and attempts to make allowances for health care providers to apologize while protecting them from any sympathetic statements being used against them in a subsequent lawsuit.
In general, apology statutes restrict the admissibility of statements of benevolence, sympathy, commiseration, condolence, or compassion made by a health care provider to a patient or patient’s representative after an unanticipated outcome of medical care or treatment. However, not all “apology laws” are created equal and few provide adequate protection for the truly penitent physician.
The idea behind enacting these laws is that, with an apology and explanation of what caused the unanticipated outcome, a patient would be less likely to seek answers through a medical malpractice claim—reducing anger, insurance premiums, and the cost of health care. These apologies also improve communication between parties, resulting in increased feelings of patient safety and satisfaction. This set of laws embodies the American Medical Association’s belief that “a physician should at all times deal honestly and openly with patients.”
The apology laws that have been enacted range from broad and far-reaching to narrow and limited. The differences in these statutes have immense evidentiary and legal consequences, and it is important to understand what type of law, if any, is applicable in your state. States have taken two general approaches: a total protection of an apology and protection of only partial apologies.
Partial Protection of Apology Laws
The apology statutes that many states have elected to adopt do not offer the apologizer full protection from admissibility; they preserve the admissibility of apologies that admit fault. The states that have adopted this category of apology statutes are: Alaska, Delaware, Hawaii, Indiana, Idaho, Maine, Massachusetts, Michigan, Missouri, Maryland, Nebraska, New Hampshire, Pennsylvania, South Dakota, Utah, and Virginia.
These statutes protect statements such as, “I am sorry you were injured during surgery.” However, “I am sorry you were injured during surgery because I nicked an artery” is only partly inadmissible. The “I nicked an artery” portion of the statement would remain admissible under this category of laws. If, within the statement of condolence or the apology, the health care provider admits fault, in these jurisdictions, that statement is admissible.
This partial protection, while stemming from an understandable legislative intent, restricts the communication between the physician and the injured party. It is reasonable that many states want to avoid such a broad protection that a full admission of liability would be excluded from evidence. However, much of the aim of these laws is to promote open communication between a health care provider and the injured party. If a health care provider is expressing sympathy while tiptoeing around the fault restrictions of the statute, he is more likely to produce an apology that appears insincere or suspicious—potentially raising more questions from the injured party.
Total Protection of Apology Laws
In contrast to states offering only a partial protection, a number of jurisdictions offer total protection of an apology made by a health care provider. These states are Arizona; Colorado; Connecticut; Washington, D.C.; Georgia; Iowa; Louisiana; Montana; North Carolina; North Dakota; Ohio; Oklahoma; Oregon; South Carolina; Vermont; West Virginia; Wisconsin; and Wyoming.
This category of apology statutes facilitates a much broader protection for the apologizer, in turn promoting more open communication and transparency between the parties. With the entire apology inadmissible as evidence, the health care provider is able to provide more explanation of why the unanticipated outcome occurred, and fully express sympathy without the underlying concern of admissibility.
General Apology Statutes
A third category of statutes that has been adopted includes generic apology laws that apply beyond the scope of the health care field. Instead of specifying that the benevolent or sympathetic statement or gesture must be made by a health care provider, they allow the statute to be expanded to any “accident.”.
While this code only applies in civil actions, not criminal, it is broader than only health care, and applies broadly to “accidents.” There is little case law on the application of this statute, but we assume it would apply equally to medical malpractice claims, car accidents, and other negligence claims. States that have adopted this approach to an apology statute are: California, Florida, Massachusetts, Texas, Tennessee, Washington.
Interestingly, one state, Massachusetts, falls into both categories—with a specific health care apology law and also a separate “accident” law.
States With No Apology Statute
Thirty-eight states have adopted an apology law, leaving 12 states that allow the admission of benevolent and sympathetic statements into evidence. These states are Alabama, Arkansas, Illinois, Kansas, Kentucky, Minnesota, Mississippi, New Jersey, Nevada, New Mexico, New York, and Rhode Island. These states have taken a variety of approaches to the treatment of benevolent statements—from overturning previously enacted apology laws to having no notable intent to enact an apology law at all. An apology by a health care provider in one of these 12 states will be admissible as evidence.
The concepts of “what is right” and “what protects from liability and litigation” rarely collide. However, the concept of an apology law is one of the few exceptions. As attorneys, we often seek to reduce the risk of litigation by limiting what our clients say or do. Yet, studies show that plaintiffs sue doctors to understand what happened, protect the safety of future patients, and an overall desire to hold caregivers accountable. Monetary compensation is often secondary to these underlying motives.
The range of apology laws that have been enacted by the states attempt to allow transparency between a health care provider and his patient—ultimately attempting to reduce medical malpractice claims.