The Failure of ‘Sorry’: An Empirical Evaluation of Apology Laws, Health Care, and Medical Malpractice

73 Pages Posted: 21 Aug 2017 Last revised: 4 Jun 2018

Benjamin J. McMichael

University of Alabama - School of Law

Date Written: August 16, 2017

Abstract

As part of the effort to contain the size and frequency of medical malpractice claims, many states have adopted apology laws. These laws make apologies from physicians to patients inadmissible in any subsequent court proceedings. The basic rationale behind apology laws is that meritless malpractice claims are less likely to be filed when a physician can apologize to his or her patient without risking those statements being used in court. Through the use of a unique dataset, this article corrects several misunderstandings concerning this new generation of tort reform.

First, it shows that while apology laws may reduce the frequency and size of malpractice claims as intended, they may also have a perverse effect on patients’ propensity to litigate. If a physician knows more about whether a patient’s injury was caused by malpractice than the patient, an apology could alert the patient to that malpractice and encourage the filing of a claim.

Second, the article provides the first empirical analysis of the effect of apology laws on clinical outcomes, investigating their ability to reduce the practice of defensive medicine. Examining over 1.6 million hospital stays for heart attack patients, the article finds no evidence that apology laws reduce defensive medicine. Apology laws do not decrease the intensity of treatment received by patients. In fact, they increase the medical resources used to treat heart attack patients, consistent with an increase in defensive medicine. Based on these empirical findings, the article concludes that apology laws are not effective tort reforms and that states should look to other policies if they wish to achieve the goals of apology laws.

Keywords: Apology Law, Malpractice, Physicians, Tort Reform

JEL Classification: I18, K13, K41

Suggested Citation

McMichael, Benjamin J., The Failure of ‘Sorry’: An Empirical Evaluation of Apology Laws, Health Care, and Medical Malpractice (August 16, 2017). Lewis & Clark Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3020352 or http://dx.doi.org/10.2139/ssrn.3020352

Benjamin J. McMichael (Contact Author)

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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