Insuring Apologies

48 Fla. St. U.L. Rev. (2021 Forthcoming)

U of Alabama Legal Studies Research Paper No. 3581801

45 Pages Posted: 22 Apr 2020 Last revised: 28 Apr 2020

Date Written: April 21, 2020

Abstract

Based on evidence demonstrating that an apology from a wrongdoer to a victim can assuage the victim’s anger, reduce the likelihood that the victim seeks legal redress, and facilitate settlement, state legislatures have passed apology laws to encourage the delivery of more apologies. Aimed primarily at medical malpractice litigation — a traditional locus of the tort reform effort — apology laws render apologies from physicians to patients inadmissible in subsequent legal proceedings. In theory, privileging apologies will encourage their use and reduce malpractice liability risk as patients assert fewer claims and settle those claims that are asserted.

However, if apology laws encourage the delivery of insincere or disingenuous apologies, liability risk may increase, as such apologies exacerbate, rather than assuage, patient anger. Similarly, if apology laws encourage physicians to offer apologies that signal the occurrence of malpractice that otherwise would have gone undiscovered, physician liability risk may increase. Thus, apology laws may increase or decrease medical malpractice liability risk, and the nature of their ultimate effect has sparked an intense debate among scholars, policymakers, and physicians. This Article shows that apology laws have the counterintuitive effect of increasing liability risk.

To evaluate whether apology laws work as intended, I examine a novel dataset of medical malpractice insurance premiums charged to physicians over 19 years. This dataset provides a better measure of liability risk than publicly available (but incomplete) data on malpractice claims used in prior work. Across three separate specialties (general surgery, internal medicine, and obstetrics/gynecology), my analysis demonstrates that apology laws increase the premiums charged to physicians by between 10 and 16 percent. These increases translate into substantial additional costs for individual physicians, with surgeons, internists, and obstetricians paying $5,000, $1,700, and $7,200 more in annual premiums, respectively. Based on strong and consistent evidence that apology laws increase, not decrease, malpractice liability risk, I argue that these laws fail to achieve their stated goal. Also on the basis of this evidence, I propose several alternative legal strategies for legislatures to accomplish their goals.

Keywords: malpractice, healthcare, torts, apology, apology law

Suggested Citation

McMichael, Benjamin J., Insuring Apologies (April 21, 2020). 48 Fla. St. U.L. Rev. (2021 Forthcoming), U of Alabama Legal Studies Research Paper No. 3581801, Available at SSRN: https://ssrn.com/abstract=3581801

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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