Doctors, Apologies, and the Law: An Analysis and Critique of Apology Laws

54 Pages Posted: 10 Jan 2007 Last revised: 7 May 2008

Marlynn Wei

Massachusetts General Hospital; Harvard University - McLean Hospital

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Abstract

This article analyzes and critiques apology laws, their potential use, and effectiveness, both legally and ethically, in light of the strong professional norms that shape physicians' reaction to medical errors. Physicians are largely reluctant to disclose medical errors to patients, patients' families, and even other physicians. Some states have passed so-called apology laws in order to encourage physicians to disclose medical errors to patients. Apology laws allow defendants to exclude statements of sympathy made after accidents from evidence in a liability lawsuit. This piece examines potential barriers to physicians' disclosure of medical mistakes and demonstrates how the underlying problem may actually be rooted in professional norms - norms that will remain outside the scope of law's influence. The article also considers other legal and policy changes that could help to encourage disclosure.

Keywords: medical errors, medical malpractice, apology, apology law, disclosure

Suggested Citation

Wei, Marlynn, Doctors, Apologies, and the Law: An Analysis and Critique of Apology Laws. Journal of Health Law, Vol. 39, No. 4, Fall 2006. Available at SSRN: https://ssrn.com/abstract=955668

Marlynn Wei (Contact Author)

Massachusetts General Hospital ( email )

Boston, MA 02114
United States

Harvard University - McLean Hospital ( email )

115 Mill Street
Belmont, MA 02478
United States

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