"Sorry" Is Never Enough: How State Apology Laws Fail to Reduce Medical Malpractice Liability Risk

Authors

W. Kip Viscusi
Benjamin J. McMichael, School of Law, Univ. of Alabama
R. Lawrence Van Horn, Owen Grad. School of Management, Vanderbilt Univ.

Document Type

Article

Publication Title

Stanford Law Review

Publication Date

2019

ISSN

0038-9765

Page Number

341

Keywords

medical malpractice, apology law, tort reform, litigation

Disciplines

Law | Litigation | Medical Jurisprudence | Torts

Abstract

Based on case studies indicating that apologies from physicians to patients can promote healing, understanding, and dispute resolution, 38 states have sought to reduce litigation and medical malpractice liability by enacting apology laws. Apology laws facilitate apologies by making them inadmissible in subsequent malpractice trials.

The underlying assumption regarding the potential efficacy of these laws is that, after receiving an apology, patients will be less likely to pursue a malpractice claim and will be more likely to settle those claims that are filed. However, once a patient has been made aware that the physician has committed a medical error, the patient’s incentive to pursue a claim may increase even though the apology itself cannot be introduced as evidence. The net effect on medical malpractice liability costs could be in either direction. Despite apology laws’ status as the most popular, recently enacted tort reform and one of the most widespread tort reforms in the country, there is little evidence that they achieve their goal of litigation reduction.

This Article provides critical, new evidence on the role of apology laws by examining a dataset of malpractice claims obtained directly from a large, national malpractice insurer. This dataset includes substantially more information than is publicly available and, thus, presents a unique opportunity to understand the effect of apology laws on the entire litigation landscape in ways that are not possible using publicly available data. Decomposing medical malpractice liability risk into the frequency of claims and the magnitude of those claims, we examine the malpractice claims against 90% of physicians in the country who practice within a single specialty over an eight-year period.

The analysis demonstrates that, for physicians who regularly perform surgery, which is a context in which patients should be aware of potential risks, apology laws do not have a substantial effect on the probability of facing a claim or the average payment made to resolve a claim. However, in situations of asymmetric information in which the physician has greater knowledge of the risks, the apology provides information that the patient does not have, thus providing a possible incentive to pursue a claim even though the apology cannot be introduced as evidence. For non-surgeons, we find that apology laws increase the probability of facing a lawsuit and increase the average payment made to resolve a claim, which is consistent with the presence of asymmetric information with respect to non-surgeons. Overall, our findings indicate that, on balance, apology laws increase rather than limit medical malpractice liability risk.

Recommended Citation

W. Kip Viscusi, Benjamin J. McMichael, and R. Lawrence Van Horn, "Sorry" Is Never Enough: How State Apology Laws Fail to Reduce Medical Malpractice Liability Risk, 71 Stanford Law Review. 341 (2019)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1086