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Apology laws and malpractice liability: what have we learned?

Medical error remains a far too common source of harm.1–4 After a medical error occurs, a physician has a decision to make: disclose the error and apologise, or keep quiet. Traditionally, defence attorneys and insurers counselled physicians against disclosing errors. Within the medical profession, however, the last two decades have witnessed a strong push for transparency. Healthcare organisations are adopting disclosure policies, providing training on how to talk with patients in the aftermath of an error and building communication and resolution programmes (CRP), programmes that ensure disclosure and apology to patients, followed by adverse event investigations, and when appropriate, offers of compensation or other remedies. Motivating factors for these changes include meeting ethical obligations, promoting greater patient trust and fostering patient safety.

The law is slowly evolving to support these efforts. One notable development is that 39 states now have ‘apology laws’, about a third of which apply to both healthcare and other contexts.5 In the healthcare setting, apology laws protect aspects of healthcare providers’ communications with patients about adverse events from being used as evidence in malpractice litigation while some have general applicability.6 There is substantial variation across states in the scope of protection provided by apology laws, with most protecting only statements of sympathy (eg, ‘I’m sorry this happened’) and a minority extending protection to statements of explanation and statements of fault (eg, ‘I’m sorry I hurt you by giving you the wrong medication’).5

Apology laws may cultivate greater candour in healthcare by providing reassurance that the old warning that ‘anything you say can and will be used against you in a court of law’ does not apply to medical error discussions. But the impetus for state lawmakers was somewhat different: a belief that apologies could promote reconciliation and dissuade injured patients from suing, …