Medical Apology Programs & the Unauthorized Practice of Law

Abstract

This Essay was created to accompany a presentation at the New England Law Review/American Health Lawyers Association symposium “On the Table: An Examination of Medical Malpractice, Litigation, and Methods of Reform.” In the last decade, many American medical facilities have instituted medical apology programs. These programs call on doctors who have committed an error to meet with their injured patient, explain what happened and, typically, apologize. Some programs have also adopted policies to accompany these communications with offers of compensation. As part of this process, doctors are typically accompanied to meetings by risk managers who represent the interests of the facility and malpractice insurers. While apology programs bill themselves as allowing “open, honest, and robust” communication, empirical evidence establishes that patients participating in them are less likely to be provided compensation and, to the extent they are compensated, receive less money. Based on the Washington Supreme Court decision in Jones v. Allstate Ins. Co., which examined an auto insurer’s program that shared key attributes with apology-and-offer programs, this Essay additionally argues that risk managers and other non-attorney hospital representatives who participate in apology programs are engaged in the unauthorized practice of law. Applying the rationale of Jones, this Essay suggests that non-attorneys participating in apology programs should be held to the ethical standards of attorneys in terms of disclosing adverse interests and advising patients to seek independent counsel.

Keywords: medical malpractice, apology, physicians, torts, negligence, damages