| ‘I’m Sorry’ laws are a boon for insurers
March 14, 2012, GABRIEL H. TENINBAUM, Boston
The Rhode Island General Assembly is considering an “I’m Sorry” law for medical-malpractice cases. The bill, 2012-H-7290, would let a doctor or hospital apologize to a patient after an act of malpractice, and then would prevent a jury from learning about the apology if the patient asked for compensation at a trial. Its proponents say it is intended to promote communication among doctors, hospitals and patients, and it even has the celebrity endorsement of actor James Woods whose brother died after medical malpractice.
This bill is a bad idea for patients, the public and the civil-justice system. The crux of the argument in favor of it is that, sometimes, when a medical provider says “I’m sorry” to a patient, it means that the provider is expressing sorrow at the patient’s suffering; while other times it means that a medical provider is sorry to have made an error that caused the patient’s suffering. On its face, the bill’s logic appears to be that a person serving on a jury cannot be trusted to distinguish between the two.
Another rationale appears to be the money that insurance companies would prefer not to pay in malpractice claims filed by the doctors and hospitals that pay premiums to them.
The story behind this strategy, which is national, began in 1999, when a study found that as many as 98,000 Americans die every year from medical errors. Many families never learned that an error was the cause of their loved one’s death. With good reason, this information shocked the medical industry.
To remedy this problem, America’s largest hospital-accrediting organization, called The Joint Commission, began requiring doctors and hospitals to tell patients if they had been injured as a result of an error.
For companies that insured hospitals and doctors, this was disconcerting. In every state, a patient can be compensated for medical injuries only if the harm was caused by substandard medical care, but not if a bad medical result was not caused by careless care.
By mandating that doctors and hospitals tell patients about errors, the proposed new disclosure requirement could mean that more patients would be aware of the cause of bad medical outcomes. As a result, insurers feared, more patients would ask for the money that the law says they are entitled to.
In response, many medical facilities began programs to disclose errors in a way that would meet the rules, while simultaneously persuading patients not to ask for money. In creating these policies, hospitals and insurance companies realized that disclosing a bad outcome without an apology could inflame injured patients. To deal with this, some began advising doctors and hospitals to accompany the required disclosure with an apology.
In case an apology alone did not dissuade a patient from asking for money, representatives of the medical industry began proposing “I’m Sorry” laws to keep the apologies secret. With few legislators or members of the public stopping to ask how these laws affect injured patients, “I’m Sorry” laws have, in one form or another, taken hold in 34 states and the District of Columbia. By contrast, only one had such a law before 1999.
It makes sense that insurers would want to do whatever they can to encourage apologies. Published studies establish that when a person apologizes to someone he or she harms, the victim is less likely to ask for compensation. Among those victims who still do pursue their rights, the research shows that they may accept less money to resolve the matter. In the context of medical malpractice, the savings is realized by insurance companies, with the cost — for future medical care, lost wages, etc. — borne by the patient.
One can easily see why this research, coupled with promoting “I’m Sorry” laws, would be favorable to the insurance industry: It gives them an opportunity to encourage apologies to dissuade patients from litigating valid cases, then it protects their interests in the event that a patient persists in pursuing his or her legal rights.
Beyond the impact on injured patients, for those who believe in the jury system the argument for “I’m Sorry” laws is hard to stomach. In courtrooms across America, jurors decide cases on the basis of their interpretations of words and behavior.
Under this bill, in any area of law except for medical malpractice (including criminal cases and other sorts of civil cases), jurors would still be able to evaluate the meaning of defendants’ words — including apologies. This would lead to the perplexing result in which a jury could interpret a defendant’s “I’m sorry” in a murder case where the defendant’s freedom is on the line, but not in a malpractice case where the defendant’s insurer’s money is at risk.
None of this is to suggest that apologies are, in themselves, a bad thing. Just the opposite: An apology is a good first step and the right thing for a doctor or hospital to offer. However, a sincere apology does not need legal protection and the responsibility of a person who causes accidental harm does not end where the need to compensate the injured person begins.
Gabriel H. Teninbaum is an associate professor of legal writing at Suffolk University Law School, in Boston.