Apology laws don't help physicians avoid malpractice suits, study finds

More than 30 states have adopted apology laws that prohibit a physician's apology to a patient from being admissible in a malpractice lawsuit. Although apology laws are intended to reduce malpractice lawsuits by allowing physicians to freely express their condolences or apologies to patients or their families, a recent study from Vanderbilt University found these laws do not limit medical malpractice liability risk.

For the study, Vanderbilt researchers analyzed 3,517 malpractice claims. They used data from a national malpractice insurer that included information on 90 percent of all U.S. physicians practicing in a single specialty from 2004 through 2011. Seventy-five percent of the physicians were surgeons.

The analysis revealed apology laws do not achieve their intended purpose. "In general, the results are not consistent with the intended effect of apology laws, as these laws do not generally reduce either the total number of claims or the number claims that result in a lawsuit," according to the study.

The researchers found apology laws have no statistically significant effect on the probability that a surgeon will face a malpractice lawsuit. However, these laws increase the probability of a lawsuit being filed against other types of physicians.

"Assuming it is easier to detect the malpractice of a surgeon than a nonsurgeon (which is likely given that surgical errors are more obvious to patients than nonsurgical errors like misdiagnosis or failure to refer), the increase in the probability of a lawsuit for nonsurgeons and the absence of an increase for surgeons is consistent with apology laws encouraging apologies that contain a signal of malpractice," according to the study. "Apologies may alert patients to errors they would not have discovered otherwise, encouraging them to file suit instead of settling or dropping their claims before filing in court."

The study was performed by Benjamin J. McMichael, PhD, a postdoctoral scholar at Vanderbilt's Owen Graduate School of Management; R. Lawrence Van Horn, PhD, associate professor of management at Vanderbilt's Owen Graduate School of Management; and Kip Viscusi, PhD, University Distinguished Professor of Law, Economics and Management at Vanderbilt University Law School. 

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