Following in the footsteps of more than 35 other states, Wisconsin has become the latest to enact a law protecting apologies by physicians from being used against them in court.
Assembly Bill 120, signed by Wisconsin Gov. Scott Walker (R) in April, shields from legal evidence any statement or gesture by doctors that expresses apology, benevolence, compassion, condolence, fault, remorse, or sympathy to a patient or patient’s family.
"We know that people often feel like their doctors abandon them after things go badly," said Dr. Norman Jensen, professor emeritus of internal medicine at the University of Wisconsin, Madison. "We know one of the reasons is doctors are afraid of getting sued. [The law’s intent] is that doctors will feel [freer] to go and talk to their patients after an adverse action happens. We know that lawsuits are less likely if doctors would only do that."
The Wisconsin law is part of an ongoing trend among jurisdictions to safeguard physicians who apologize to patients after medical mishaps. At least 37 states have some form of apology law. Most recently Pennsylvania enacted an "I’m sorry" statute in October 2013. While the laws all center on protecting doctors who express sympathy to patients, the laws differ in stringency. Some shield statements of regret or condolence, but do not protect admissions of guilt or fault, Dr. Jensen said. Stronger laws, such as Wisconsin’s, protect both apologetic statements and expressions of fault.
"The weak version [of the law] might be worse than none at all," said Dr. Jensen, who testified in support of the law in the state legislature. "It might mislead physicians into thinking they were protected when they really weren’t."
Apology laws are not without opposition. Plaintiffs’ attorneys across the country have strongly advocated against the protections. The Wisconsin Association for Justice (WAJ) expressed disappointment at its new law, saying the rule prevents patients from proving their medical malpractice claims and gives too much power to the medical community.
"A physician indicating regret for something that has gone wrong is one thing, but to admit to catastrophic carelessness and not be held responsible when you told the truth about what you did is another," WAJ President Christopher Stombaugh said in a statement. "The health care worker said it, people heard them say it, but now we have to go to court and pretend it didn’t happen. If the purpose of the trial is to discover the truth, this law does just the opposite. It hides the truth."
The WAJ supported a less expansive version of the law that would have made statements of regret, sympathy, or benevolence by a health care provider inadmissible in court.
While it is unclear if apology laws lessen litigation against physicians, apology-based initiatives at several U.S. hospitals have demonstrated significant lawsuit reductions. So-called communication and resolution programs involve investigating events in which inappropriate care may have occurred, providing an apology to patients, and offering early compensation if necessary.
Pilot efforts in this area by the University of Illinois Hospital and Health Sciences System, Chicago, since 2006 have increased adverse event reports from 1,500 per year to 10,000 while decreasing malpractice premiums by $15 million since 2010.
A similar program that began at the University of Michigan Health System, Ann Arbor, in 2001 has cut the average legal expenses per case in half, according to the UM website. In July 2001, the health system had 260 pre-suit claims and lawsuits pending; it now averages about 100 per year.