Being allowed to say 'I'm sorry'
A new law signed Wednesday by Gov. Tom Corbett might well help to improve relationships between patients and their medical professionals and, as a result, reduce medical malpractice litigation.
But the law also is flawed in practical and conceptual ways, and skirts the underlying issue - fundamental patient safety.
The new law holds that expressions of empathy, benevolent gestures, or even apologies by doctors and institutions in the wake of a bad medical outcome, may not be introduced as evidence in any subsequent malpractice litigation. It does not exclude the use in court of any factual information about a case that a doctor might disclose, but precludes an apology itself from being construed as evidence of wrongdoing.
According to the Pennsylvania Medical Society, many physicians fear that apologies or expressions of empathy for mistakes or bad outcomes can be used against them in court, so they say nothing. Some patients sue out of anger over receiving inadequate explanations, rather than out of greed, according to Stuart Shapiro, M.D., president of the Pennsylvania Health Care Association/Center for Assisted Living Management.
Unfortunately, the law deals only with one side of the conversation. It does not preclude a physician or hospital from using, in a legal defense, whatever a patient says in response to a benevolent gesture by a doctor or institution.
The medical society says there is no hard data on the impact of such laws in other states.
Some advocates of the law point to the experience of the University of Michigan Health Care System. In 2002 it adopted a policy to investigate bad outcomes, share results with patients and families, apologize and offer compensation when appropriate. That helped to drive a substantial reduction in malpractice litigation, but the state law makes no such extensive requirements of health care providers in Pennsylvania.
Meanwhile, a study published in the September edition of the Journal of Patient Safety found that preventable medical errors contribute to the deaths of 210,000 patients annually.
In 2010, the inspector general for the U.S. Department of Health and Human Services found that poor hospital care contributes to the deaths each year of 180,000 Medicare patients alone.
The apology law is good as far as it goes. But the legislative and regulatory policy focus should be on reducing medical errors.