It has been suggested by some medical groups, including the Massachusetts Medical Society, that doctors and hospitals would be more likely to offer apologies to their patients for medical errors if they knew their statements could not be used in a medical malpractice claim.
For this reason, these groups have promoted the enactment of so-called “apology statutes.” These statutes claim to make apologies inadmissible in court so that doctors and hospitals can apologize to patients and their families for questionable medical care without the apology being used as an admission of fault. One such bill, H1332, is currently pending in the State House.
The law in Massachusetts has long been that expressions of apology and regret by anyone are inadmissible in court to prove that someone is negligent. M.G.L. chapter 233 Section 23D, on the books since 1986, says just that. Under this current law, if a doctor or hospital says “I’m sorry that the surgery wasn’t successful,” that statement could not be used in court because it is simply a statement of general regret. However, if a doctor says “I apologize for operating on the wrong side of your body,” the admission of negligence (but arguably not the apology) could be used in court to establish fault. The idea behind the current law is to allow people to express human feelings of sympathy without worrying that it may be construed as an admission of fault–even people who are blameless may legitimately want to express regret and condolences.
“Apology Statutes” like H1332 represent an unsettling change in the law, allowing medical providers to admit “errors and mistakes” to their patients but to deny those errors and mistakes if called to testify in court. Under this proposed law, a doctor could tell a patient “I am sorry for your loved one’s death–we accidentally gave him the wrong medication that stopped his heart,” and this statement would be inadmissible for any purpose in court. The same doctor who made that statement could come to court and testify that there were no medication errors, and the victim’s family could say nothing of his prior admission.
One might wonder why physicians and hospitals would seek special protection under the law for being honest with their patients about errors and mistakes. One obvious answer to this question is money, in particular insurance company money. Every doctor and hospital in Massachusetts is insured for damage done by their mistakes. Some insurance companies and risk managers believe, based on studies, that if there are more apologies and admissions of mistakes by health care providers, fewer people will pursue their legal rights, and insurers will have to pay fewer claims. Thus, laws like H1332 allow medical providers to apologize and admit mistakes so long as they do not have to admit those mistakes when it costs their insurer money. Bills like H1332 are bad policy, unnecessary and should not be enacted as they tend to hide the truth from the judicial system, while giving health care and providers a free pass to “admit” to mistakes without taking any responsibility for them.
An apology may be a good first step in addressing a medical error, and the right thing for a doctor or hospital to do. An apology may of course be well-intentioned and not based upon any admission of fault or error–such apologies are already inadmissible in Massachusetts courts, for everyone. But an apology or admission which is only made if it doesn’t result in fair compensation from the insurer is really no apology at all. Before patients give up their right to bring a medical malpractice claim based upon an “apology,” they should seek advice from an experienced, reputable medical malpractice attorney.