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Apology laws don’t help doctors avoid malpractice payouts

by | Feb. 1, 2017, 11:43 AM | Want more research news? Subscribe to our weekly newsletter »


Share this on Facebook Medical malpractice claims are not influenced by doctors who apologize

Laws that allow doctors to apologize to patients with the provision that the apology not be used in lawsuits fail to limit medical malpractice liability risk, according to a new study from Vanderbilt University.

“State apology laws … are reforms to state rules of evidence and exclude from trials statements of apologies, condolence or sympathy made by healthcare workers (sometimes only physicians) to patients,” it says in the paper, “Sorry Is Never Enough: The Effect of State Apology Laws on Medical Malpractice Liability Risk.”

Benjamin J. Mcmichael

Benjamin J. McMichael (Vanderbilt University)

Apology laws are “intuitively appealing but empirically unfounded,” says Benjamin J. McMichael, a postdoctoral scholar at Vanderbilt’s Owen Graduate School of Management and one of three authors of the paper.

Many times malpractice lawsuits are expressions of anger, previous studies have shown. Working on that theory, lawmakers in 32 states plus the District of Columbia have enacted apology laws, hoping that apologies might be enough to resolve cases without legal intervention.


To test the concept, Vanderbilt researchers used a data bank that includes all malpractice claims for 90 percent of physicians practicing in a single specialty across the country, attained from a national malpractice insurer. Seventy-five percent were surgeons. The data, from 2004 to 2011, was provided on the condition that the company and specialty not be revealed publically.

Of the 3,517 claims used in the study:

– 2.6 percent of doctors face a malpractice lawsuit a year;

– 65.4 percent of those sued end up in court;

– Of the 65.4 percent above, 51.4 percent pay the claimant something

– Of the 65.4 percent above, 34.6 percent settle a claim without involving the courts;

– Of the 34.6 percent above, 7.1 percent settle out of court and pay the claimant something; and

– Of the 34.6 above, 27.5 percent have claims dropped without paying the claimant anything.

There is no way for researchers to know how many doctors apologized. For the purpose of the study, it was assumed that apology laws increase the number of apologies.

“In general, the results are not consistent with the intended effect of apology laws, as these laws do not generally reduce either the total number of claims or the number of claims that result in a lawsuit,” according to the study. “Apology laws have no statistically significant effect on the probability that surgeons experience either a non-suit claim or a lawsuit.”

Dreaded by doctors

Malpractice claims are dreaded by doctors, McMichael says.

“They (doctors) hate lawsuits. They hate paying out money,” McMichael says. “You’re basically being told you’re a terrible doctor for two or three years while the case goes on.

“It is terrible for self-esteem, I’m sure. I wouldn’t want to be told for two or three years about how bad an economist I am.”

An apology could be first and only indication that something went wrong. It “might transport a signal,” McMichael says. By apologizing, the doctor tells the patient he screwed up when the patient previously did not know that.”

The patient might decide to file a lawsuit based on that information.

“They can’t use the apology itself, but knowing something went wrong, they can look for other evidence that they can use.”

McMichael conducted the study with Kip Viscusi, the University Distinguished Professor of Law, Economics, and Management at Vanderbilt Law School, and R. Lawrence Van Horn, associate professor of management at Vanderbilt’s Owen Graduate School of Management.

If you talk to any doctor, they will almost certainly tell you that a lot of their practice is driven by malpractice fears,” McMichael says. “Three percent of each payment on Medicare is based on protecting doctors against that malpractice premium. So it’s still certainly a big problem.”


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  • R Nixon

    Having handled nearly 40,000 I can opine on this topic. Malpractice claims occur for 2 reasons first poor communication. Of the nearly 1000 claims per year opened we closed 750 through courts as S/J or dismissals. Through our analysis we determined the doctor simply failed to discuss the matter properly. The larger problem is a claim filed due to the value of the claim. Regardless of negligence plaintiff attorneys seek out high value claims thus reason why OBGYN pay the second highest rate neuro # 1. Just look at the TV ads did you suffer brain damage? Carriers are not willing to write a new limit and invariably settle obstetrical claims. In NJ 33% of paid loss is OBGYN as reported by the Star Ledger The irony most of these cases are defensible greatly harming the doctor and allowing the carrier to avoid questioning.