Protection provided by 'Apology' laws varies from state to state

January 15, 2009

An increasing number of states have enacted "apology" laws aimed at encouraging physicians to disclose medical errors.

An increasing number of states have enacted "apology" laws aimed at encouraging physicians to disclose medical errors. But such laws vary from state to state and may expose physicians to varying degrees of malpractice liability, according to a Narrative Review: "Do State Laws Make It Easier to Say 'I'm Sorry?'" published in the Dec. 2 issue of the Annals of Internal Medicine.

William M. McDonnell, MD, JD, of the University of Utah School of Medicine in Salt Lake City, and a colleague reviewed the codified statutes of all 50 states and the District of Columbia.

The researchers found that 36 states have enacted apology laws protecting voluntary disclosures of medical errors. In 28 states, the investigators found that apology laws prevent the use of expressions of sympathy, regret and condolence -- but not admissions of fault -- against the physician in subsequent litigation. In eight other states, however, they found that apology laws protect expressions of sympathy as well as admissions of fault.

"Issues regarding medical error and potential malpractice liability understandably make physicians uncomfortable," the authors write. "Nonetheless, apology laws may present new opportunities to discuss difficult topics with patients. Our article might be viewed as a first step in educating physicians about these new opportunities. In states in which no apology laws have yet been enacted, physicians have the opportunity to work with their state legislators in crafting apology laws that may best meet their needs. Physicians should now be equipped, and are strongly encouraged, to pose well-informed inquiries to their state medical associations and legal counsel about how best to comply with their own states' apology laws."

McDonnell WM. Guenther E,. Narrative Review: Do state laws make it easier to say "I'm sorry?" Ann Intern Med. 2008;149:811-815.