Apology Laws Don’t Stop Patients from Filing Medical Malpractice Lawsuits

April 19, 2017

Indiana is one of thirty-six states that has “apology laws” that allow doctors and other medical professionals to express sympathy without admitting fault in a medical malpractice lawsuit. Basically, these laws allow a doctor to say she’s sorry for what happened in a tragic medical case without admitting that she caused the tragedy due to her actions or lack of action.

A recent study from Vanderbilt University is questioning why thirty-six states have laws that are “intuitively appealing” but “empirically unfounded.” Essentially, why do these states have apology laws if they don’t work?

Medical Malpractice Statistics from Vanderbilt University Study

Previous studies have shown medical malpractice lawsuits are expressions of anger, according to Vanderbilt University’s news and research blog. Apology laws have been adopted in hopes of easing victims’ frustrations so they don’t file medical malpractice lawsuits.

But Vanderbilt University’s new study suggests that those hopes are misplaced. Researchers collected data from 2004 to 2011 on 90 percent of physicians facing malpractice lawsuits in a single specialty nationwide. Seventy-five percent of physicians in the study were surgeons. Of the more than 3,500 medical malpractice claims tracked in the study, 65.4 percent of physicians who were sued ended up in court. Roughly half of those who wound up in court ended up paying the claimant at least something.

2.6 percent of doctors face a medical malpractice lawsuit a year. But researchers found no difference between physicians who practiced in states with apology laws and physicians practicing in states without them. Apology laws didn’t stop doctors from being sued, and it didn’t affect whether they went to court or reached an out-of-court settlement.

Why Apology Laws Don’t Work

Benjamin J. McMichael, postdoctoral scholar at Vanderbilt and one of three authors of the study, suggested that a doctor’s apology “might transport a signal” to patients that something went wrong. It might be a patient’s first indication that the doctor did not perform to a reasonable standard of care.

“[Patients] can’t use the apology itself, but knowing something went wrong, they can look for other evidence that they can use,” McMichael said.

It can be difficult for patients to know if a tragedy resulting from a medical procedure or process is an unavoidable mistake, a knowable risk, or a case of medical malpractice. Doctors’ apologies in states with apology laws may not be admissible in court as evidence, but they may help patients realize that their physician may be responsible for what went wrong in the medical procedure or process.

Indiana Code §34-43.5-1-4 prohibits use of a “communication of sympathy” as evidence of fault in causing a loss, an injury, pain, suffering, a death, or damage to property in medical malpractice lawsuits. However, that doesn’t mean that a negligent physician cannot be held accountable simply because they said, “I’m sorry.” Patients have every right to seek legal advice if they believe they might be the victim of medical malpractice.

Help from an Indiana Medical Malpractice Attorney

An Indiana medical malpractice attorney doesn’t need an apology from a physician to build a case. A skilled Indiana medical malpractice attorney can build a case on other evidence to prove that a physician didn’t meet a reasonable standard of care and that his or her negligence caused injury, harm, or death to the patient.

If you or a loved one has been injured due to the negligence of a medical professional or facility, you deserve more than an apology. Call Hensley Legal Group for a free case review, or contact us online.