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PSNet: Patient Safety Network
Journal Article

"Sorry" is never enough: how state apology laws fail to reduce medical malpractice liability risk.

McMichael BJ, Van Horn L, Viscusi K. Stanford Law Rev. 2019;71(2):341-409.

Prior research has shown that patients prefer that errors and adverse events be fully disclosed to them by their providers. However, physicians may be hesitant to simultaneously express empathy out of fear that such an expression could be taken as an admission of fault that might result in litigation. As a result, 38 states and the District of Columbia passed apology laws, designed to make such apologetic statements inadmissible in court, but the effect of such laws on medical malpractice remains unknown. Using a dataset obtained from a large malpractice insurer, researchers analyzed claims against 90% of United States physicians by specialty over 8 years. They found that for physicians in nonsurgical fields, apology laws increased the risk of experiencing litigation as well as the average dollar amount paid to settle a claim. They did not find such an effect for surgeons. A past PSNet interview highlighted the challenges associated with disclosure and apology.