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Medical errors are estimated to result in the deaths of thousands in this country each year.

Some studies place the number between 44,000 and 98,000 annually. And, at a time when healthcare providers generally are desperate to reduce the rising costs of malpractice insurance and litigation, apologizing for medical mistakes may seem to many to be exactly the wrong answer. But to a fast-growing and varied contingent of supporters nationally, (including doctors, hospital administrators, insurance executives, patient advocates, politicians and even trial lawyers), it may actually be a step in the right direction. The apparent basis of this movement is the belief by many that medical malpractice lawsuits are motivated as much by feelings of frustration as by money. And a simple "I'm sorry" is, according to proponents of these laws, often just what the patient is looking for.

Physician apology laws, or "I'm sorry" laws, are now existent in some form in the majority of states. Indeed, five states have passed mandatory disclosure laws and 29 states have enacted laws excluding expressions of sympathy after accidents as proof of liability. And although Mississippi has not yet joined the ranks of these apology-safe states, many of our neighboring southern states have implemented such statutes, including Florida, Georgia, Louisiana, Tennessee, Texas, and the Carolinas.

An apology law is a statute which allows a doctor or other healthcare provider to apologize or offer expressions of grief concerning patient outcomes without their words being used against them in court. Proponents of this approach include 2008 Democratic presidential candidates Hillary Rodham Clinton, D-NY, and Barak Obama, D-Ill., who, in late 2005, jointly sponsored the National Medical Error Disclosure and Compensation (MEDiC) Act to encourage hospitals to apologize after medical errors, and to negotiate fair compensation.

MEDiC would create a voluntary federal program to help hospitals revamp their institutional response to medical errors. Instead of remaining silent or seeking immediate legal assistance, hospitals would be encouraged to apologize for errors, compensate patients for any harm, and institute safety programs to reduce future errors. The bill would also create a national database of medical errors and an Office of Patient Safety and Health Care Quality within the Department of Health & Human Services.

MEDiC followed President George W. Bush's signing into law the Patient Safety and Quality Improvement Act in July 2005, which established, among other things, a confidential and voluntary system for reporting medical errors.

Proponents of the nationwide adoption of apology laws contend that this approach will drastically reduce the volume of medical malpractice actions brought against our healthcare providers. Reports issued from one major health system in the Northeast (approximately 800 beds) are supportive of this conclusion, indicating that after implementing an apology program in 2002, attorney fees for that system have dropped from $3 million annually to $1 million, and malpractice suits and notices of intent to sue have decreased by well more than 50 percent. Similar statistical support for these laws is cited in numerous independent studies conducted in the last couple of years. Anecdotal evidence collected in one study, for example, reflected a reduction in legal defense costs of between 30 and 67 percent following implementation of an "I'm sorry" program.

Even the Joint Commission has commented that the movement toward these programs in so many states reflects a shift in our culture which is allowing people, and specifically healthcare providers, to be more open and demonstrate that they are "doing the right thing."

On the other side of this debate, however, there are obvious concerns which have caused delay in made many states' decisions to take part in what appears to be a national trend. In particular, many posit that admission of medical mistakes, even in the form of an apology, will simply result in more malpractice litigation and will guarantee a negative end result in court for the healthcare provider.

It's impossible to predict the ultimate impact this debate may have here in Mississippi, but the proposition certainly provides food for thought by our healthcare providers, The Mississippi Bar, and our legislators. If, as proponents passionately argue, fuller disclosure will reduce malpractice (and not just malpractice litigation) in a more fundamental way by helping healthcare professionals learn from mistakes so fewer preventable errors occur, then maybe the time is now for implementation of such a program here.


April 2007

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