Is Sorry Enough? Apology Laws and Medical Errors

Patrick C. Barry

The “Just Say We’re Sorry” movement gaining popularity in the medical field is a poor response to the epidemic of medical errors that plagues our country. Many states have enacted “Apology Laws” that allow doctors and hospitals to corral a victim and their family, explain why and how they caused a life-changing injury during treatment, and then protect that entire conversation from becoming evidence in a legal case. Other hospital programs, such as “Peer Review” investigations, are even worse. Patients will never find out the results of the hospital’s own review of even the most blatant malpractice and medical errors. The hospitals are protected from full disclosure, even when they give an apology.

Can merely saying “I’m sorry” really address the terrible consequences of medical errors and malpractice? Victims of medical errors face many challenges. They need to understand the injury they have sustained, and how. They face additional medical treatment and expenses. They may have lost their ability to work and earn money. They may remain dependent upon family members and government assistance. An entire family may be left behind to suffer when a medical error is fatal, as they often are. What victims need is compensation, not empty words.

Appropriate “Early Resolution” programs – which combine apology, explanation, correction and compensation – offer a better approach. Such programs, developed nearly twenty years ago at places like the University of Michigan and Emory University, attempt a more comprehensive approach when medical errors occur. The University of Michigan actually calls its approach an “Early Disclosure and Offer Program.” They seek to reduce both the cost of our lawsuit-based compensation system as well as the rate of patient harm. Numerous studies have found that these programs are very successful in reducing the overall liability cost, the time to resolution of legal claims, and the rate of medical errors. Indeed, they have been shown to be the most effective way of doing so when compared to outdated notions of “tort reform,” like caps on damages and other restrictions on patients’ rights.

Yet, good programs remain rare. The “Sorry Works!” Coalition is one bright spot in the darkness. While many hospitals and practice groups make half-hearted attempts at apologies without payment, Sorry Works! advocates for full disclosure and appropriate compensation. Their experience has shown that such an approach can lower lawsuit costs, increase accountability, improve patient safety and also meet the financial needs of patients and families harmed by medical errors.

What should a patient or family do when they find themselves on the receiving end of such an apology for a severe injury? Legal assistance is a must. Any explanation provided by a health care provider is worthy of review by an experienced medical negligence lawyer, like our team at Decof, Decof & Barry, P.C. This will allow you to determine whether or not you are being treated fairly. Any “apology” that does not truly serve the goals of education, accountability and fair compensation should be rejected.

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