Medical Apology Laws – a Wolf in Sheep’s Clothing
When people are injured during medical treatment, the very first thing they want is answers. What happened? How did this happen? Can this be fixed? When will this go away? Unfortunately, in Florida, they are highly unlikely to get those answers from the very people who hurt them. Why? Because Florida does not have a “medical apology law.”
Medical apology laws have been enacted in 36 states. They protect healthcare providers from having their apologies used against them in a medical malpractice lawsuit. Under this rule of evidence, rather than simply saying, “I’m sorry this happened to you,” which isn’t an apology at all, doctors can provide a genuine, substantive apology, without fear of it being used against them. They can even admit guilt, error, carelessness, and take complete responsibility and the jury in the subsequent medical malpractice case will never hear about it. In the lawsuit, the doctor can still deny any and all wrongdoing, drag out the case for two or three years, and make the plaintiff produce expensive, complicated medical expert testimony to prove his case at trial. From the defense, the jury would only hear the doctor and his experts’ testimony that this was just bad luck or an unfortunate complication, that the doctor did nothing wrong, or worse, that this was somehow the injured person’s fault!
That is why many consumer advocates view medical apology laws as more unnecessary “tort reform,” designed to allow insurance companies to hold on to their money and keep injured persons from being compensated. Why? Because research has shown that most people who bring medical malpractice lawsuits do so out of anger. Anger that they were not told what happened in surgery. Anger that the doctor simply cut them off and stopped taking their calls. Anger that they’re being told nothing is wrong with them or that this will go away in time when clearly that is not happening. So if a genuine apology can remove that anger and placate the injured patient, that patient is much less likely to sue the doctor. It goes against human nature to sue someone who has owned his mistake and done everything in his power to mitigate the damage he’s done to you. The result, though, isn’t better healthcare or improved doctor-patient relationships. No, the result is that it creates windfall profits for the insurance companies who receive outrageous premiums from responsible doctors who want to make sure they have insurance to cover their mistakes. But with medical apology laws, the insurance companies keep the doctors’ money and the patient gets nothing!
There is some patient benefit to medical apology laws. Most people have very little medical knowledge and the power imbalance they feel with healthcare professionals is quite real. An apology law should even the playing field and give patients the answers they so desperately need to heal and move on with their lives. But is that truly in their best interest to trade an apology for being made whole? After all, they can’t use an apology to make up for the lost wages the malpractice caused. An apology will not keep their car from being repossessed, get their homes out of foreclosure, or find them a job. An apology won’t replace their children’s college fund or turn into a solid retirement savings plan. An injured person can’t take an apology to the bank.
Sometimes things that seem like good ideas in theory, actually end up hurting us when we take time to look at the unintended and intended consequences. As usual, all that glitters is not gold.