Physicians Don’t Think Saying “I’m Sorry” Helps Lawsuits
Carol Peckham, the current director of editorial services at Art Science Code, LLC, published a report on why most doctors get sued. For the report, “Medscape surveyed nearly 4,000 primary care physicians and selected specialists to find out if and why they were sued, how the lawsuit affected their career and patient care decisions, and what these doctors suggest to reduce the number of lawsuits. The report shows the long-term effects, both emotional and financial, of malpractice suits on vulnerable doctors.”
The survey respondents were asked if saying “I’m sorry” would have helped. Only 3% thought that saying, “I’m sorry,” would have helped. Seventeen percent said they did not know if saying, “I’m sorry,” would have helped. A significant portion—81%—responded, “No.”
There were also verbal responses to this question. The verbal comments revealed, “most physicians reported that they didn’t say they were sorry because it wasn’t their fault, that it would have made no difference, or they were among many others named and hadn’t even met the plaintiff. More than a few said that greed was the motivating factor of the suit. Those who reported that they had expressed sorrow said that it would not have made a difference.”
State Apology Laws May Increase Risk of Lawsuits
The effect of state apology laws on medical malpractice claims is largely unknown. In a recent Stanford Law Review article, authors Benjamin J. McMichael, R. Van Horn, and W. Kip Viscusi explored the unknown effect of state apology laws. For their research, they were able to use a dataset obtained from a large malpractice insurer. The researchers examined the malpractice claims against 90% of physicians in the country who practice within a single specialty over an eight-year period.
The researchers concluded that “apology laws increase rather than limit medical malpractice liability risk.” The study looked at data for physicians in both surgical and nonsurgical fields. For physicians who regularly perform surgery, the researchers concluded that “apology laws do not have a substantial effect on the probability of facing a claim or the average payment made to resolve a claim.” This is due in part to the patient’s knowledge of potential risks. Patients having surgery are typically aware of the potential risks.
The researchers also concluded that when the physician has greater knowledge of the risks, “the apology provides information that the patient does not have, thus providing a possible incentive to pursue a claim even though the apology cannot be introduced as evidence.” The study also found that for physicians in nonsurgical fields, apology laws “increase the probability of facing a lawsuit and increase the average payment made to resolve a claim.”
