A second conference call, and a closer look at apology protection laws

Last month I had a second conference call with representatives of a Kansas professional organization. The topic was almost entirely on apology protection laws. The general message I got from this conversation is that the protections in our bill are too broad, but some of the earlier bills from past years have a more narrow and appropriate scope. (Quick review of the context: My family’s legislative bill has two parts: the first requires patients to be informed about unanticipated outcomes and medical errors in their care, and the second provides protections to exclude “expressions of apology, sympathy, explanation or fault” from being used as evidence of fault if there is a malpractice case.)

The content of our bill is based on the best practice recommendations in this paper, and we used as much wording as possible from the last apology protection bill (substitute for Kansas House Bill 2069, PDF here) discussed back in 2011. The point of my family’s bill is not these legal protections for physicians and hospital representatives. The point is to require disclosure of unanticipated outcomes and medical errors to patients. We are including these legal protections because of the best practice recommendations, and because these apology protection laws are very popular with legislatures and the medical community—and our bill for disclosure is unlikely to be successful without them. But this conversation last month prompted me to take a closer look at these apology protections. I have always had the feeling that these laws were a bit odd. I am starting to realize why I had that feeling.

Apology protection laws are usually presented as a way to reduce malpractice costs. The reasoning is that by apologizing to patients when they are harmed during care, fewer patients will be angry and file lawsuits. Fewer lawsuits means lower malpractice costs.

But wait a minute. Something in this logic doesn’t align. If patients are less angry when they receive an apology, and if these less-angry patients are unlikely to file a lawsuit, then these patients are not going to end up in court. And therefore these rules for what evidence can be admitted in court are not relevant to these patients because these patients are not in court.

So that argument falls apart. What else could be driving the popularity of apology protection laws? I think there are two things. The first is a desire to improve communication between patients and physicians. The second is the possibility that these laws will make evidence relevant to the case inadmissible in court.

Apology protection laws to improve patient–physician communication?

When apology protection laws are presented as a way to benefit patients, the message is usually something such as, “Your physician will be able to talk to you when things go wrong. He or she will apologize. You will be able to maintain a good relationship.” But that is not what apology protection laws actually do. They alter the rules for evidence in malpractice lawsuits. They do not require anyone to say anything to you, the patient. If disclosure (telling patients what has happened, apologizing if appropriate, etc.) is the desired effect, then require disclosure. Don’t alter the rules for evidence and think that somehow disclosure will be a magical side effect.

The other thing that keeps creeping up is the notion that physicians are somehow not allowed to apologize without an apology protection law. Let’s be clear that there is nothing in Kansas law (or presumably, that of any other state) prohibiting apologies by physicians. In decades past, medical malpractice companies may have told their policy holders to keep their mouths shut. But even KaMMCO (the insurance company formed by the Kansas Medical Society) wants their clients to communicate with patients. An article on the front page of their Nov/Dec 2010 newsletter concerning apology protection bill SB 374 says, “Despite not having legislation currently in place and regardless of the circumstances surrounding the event, disclosure is appropriate.” (archived here).

Apology protection laws as a method to make evidence relevant to a malpractice case inadmissible in court?

One argument in favor of apology protection laws is repeated again and again: These laws will reduce litigation costs. Where does this argument come from? Apology protection laws are relevant only after unanticipated outcomes and medical errors have happened. These laws have nothing to do with patient safety. They only affect what happens to patients (and families) after they enter the civil court system. So how can these laws reduce liability costs for physicians and hospitals? They must provide some sort of advantage for physicians and hospitals when these cases end up in the court system.

A year-and-a-half ago when I started learning about apology protection laws, I made a rather simplistic assumption: these laws made inadmissible in court the communications to the patient and family, but if the situation proceeded to court, the facts of the case are still there— the medical record is available, people involved in the situation can be called to testify, the evidence and be weighed and the matter sorted out. In addition, there is an often-repeated quote from the President of the South Carolina Trial Lawyers Association given in testimony before the South Carolina Senate in September 2005 (which I tried to verify, but South Carolina does not put records of testimony online) which says, “I would never introduce a doctor’s apology in court. It is my job to make a doctor look bad in front of a jury, and telling the jury the doctor apologized and tried to do the right thing kills my case.” I have no problem with apologies being excluded from evidence. I am not interested in “he said, she said” evidence, I want the facts of the case as evidence, I want people’s knowledge of the case as evidence. And if reassuring physicians and hospital representatives that these “apology” conversations with patients cannot be used in court will make these difficult conversations a bit less difficult, then great. Let’s have apology protection laws. I knew when my mother and I wrote our legislative bill that I would need to defend apology protection laws, and that was my reasoning.

But the proponents of apology protection laws stress the savings in litigation costs. Where is this savings coming from? This savings is not coming from disclosure and early offer programs (no law is necessary for a hospital to implement these policies). This saving is not coming from treating patients fairly and respecting their right to know about unanticipated outcomes and errors in their care (no law is needed for hospitals and physicians to tend to the information and emotional needs of their patients and families). This savings is not coming from increased patient safety (no law is necessary for hospitals and physicians to take measures to injure and kill fewer people). So where is all this savings in litigation costs coming from? I see only one place. It comes from keeping evidence that is relevant to a case out of the court room. And that is very troubling.

This argument that apology protection laws reduce litigation costs may be misguided or just outright wrong. But it needs to be taken seriously, because it is so commonly used by proponents of apology protection laws in the healthcare industry.

So now what?

So I need to question the simplistic assumptions that I originally had. I am looking for examples in which apology protection laws were used to conceal evidence. If you are aware of any, please let me know.

There is one case that needs to be considered and has been brought to my attention. Pharmacist Robert R. Courtney was found guilty in a federal criminal court of diluting chemotherapy drugs. This happened in Missouri in 2002. He made the statement “I am guilty and I accept full responsibility. To the victims, I am extremely sorry.” How might an apology protection law apply to this case? This is an example where there are no medical records documenting the truth of what happened. The diluted chemotherapy drugs have already been taken. For the vast majority of victims, there is no evidence of Courtney’s malpractice other than his own statements, which include an apology.

It is not difficult to start imagining scenarios in which apology protections start creeping over into concealing evidence. Is a defense lawyer going to argue that making note of an apology in a medical record (as my family’s bill requires) makes the entire record inadmissible? I certainly hope not. But that would lower litigation costs, just as advertised, because when patients do not have access to all evidence relevant to their case, they may not have much of a case.

So now my family is in the position of realizing that part of our legislative bill could be used in ways that we did not intend. We also have become aware of a renewed interest in a stand-alone apology protection bill for Kansas. I have discussed this with my family, and this is our position:

  • We will continue to advocate for our legislative bill that both requires disclosure of unanticipated outcomes and medical errors to patients and provides protection for apologies.
  • We would also be very supportive of a bill that requires disclosure without apology protections.
  • We are strongly opposed to a stand-alone bill for protection of apologies.
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