The Flaws in State 'Apology' and 'Disclosure' Laws Dilute Their Intended Impact on Malpractice Suits

Posted: 10 Sep 2010

See all articles by Anna C. Mastroianni

Anna C. Mastroianni

University of Washington - School of Law; University of Washington, Dept. of Health Services, School of Public Health; University of Washington, Dept. of Pediatrics and Department of Bioethics and Humanities, School of Medicine

Michelle M. Mello

Stanford Law School; Department of Medicine

Shannon Sommer

University of Washington

Mary Hardy

University of Washington

Thomas H. Gallagher

University of Washington

Date Written: September 1, 2010

Abstract

This article describes laws in 34 states and the District of Columbia that protect statements of apology from being used in personal injury or medical malpractice litigation, as well as laws in 9 states that require health care institutions to disclose to patients or families when an unanticipated adverse outcome of care occurs. Our analysis suggests that most laws have major shortcomings that may actually discourage full disclosures and apologies and may result in incomplete protection for health care providers who offer apologies. We suggest "best practices" for statutory design. A PDF of the article can be obtained from the authors.

Keywords: Malpractice, Medical, Liability, Apology, Disclosure

JEL Classification: I10, K13

Suggested Citation

Mastroianni, Anna C. and Mello, Michelle M. and Sommer, Shannon and Hardy, Mary and Gallagher, Thomas H., The Flaws in State 'Apology' and 'Disclosure' Laws Dilute Their Intended Impact on Malpractice Suits (September 1, 2010). Health Affairs, Vol. 29, No. 9, 2010, Available at SSRN: https://ssrn.com/abstract=1674928

Anna C. Mastroianni

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

HOME PAGE: https://www.law.washington.edu/directory/profile.aspx?ID=144

University of Washington, Dept. of Health Services, School of Public Health ( email )

Seattle, WA 98103
United States

University of Washington, Dept. of Pediatrics and Department of Bioethics and Humanities, School of Medicine ( email )

Seattle, WA 98195
United States

Michelle M. Mello (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
650-725-3894 (Phone)

HOME PAGE: http://https://law.stanford.edu/directory/michelle-m-mello/

Department of Medicine ( email )

Center for Health Policy / PCOR
Encina Commons
Stanford, CA 94305
United States

HOME PAGE: http://https://profiles.stanford.edu/michelle-mello?tab=bio

Shannon Sommer

University of Washington ( email )

Seattle, WA 98195
United States

Mary Hardy

University of Washington ( email )

Seattle, WA 98195
United States

Thomas H. Gallagher

University of Washington ( email )

Seattle, WA 98195
United States

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