Apology/Disclosure Laws

In an effort to enhance physician-patient communication in order to reduce the amount of medical liability issues nationwide, then-Senators Clinton and Obama introduced a bill (S 1784) that would have provided liability protections for physicians who disclose medical errors and offer to enter compensation negotiations with affected patients out of court. Under the disclosure program established through the bill, health care providers would have reported patient injuries to a designated officer who would determine whether those injuries resulted from a medical error. In the event that a medical error occurred, providers would have explained the incident to patients, offered an apology and entered into compensation negotiations. The apologies would have remained confidential, and patients could not have used them as an admission of guilt in legal proceedings.

Such an approach would have likely improved the current status quo of patient safety as the bill sought to reduce the number of malpractice lawsuits and help physicians avoid repeat medical errors. Further, such a bill would have been unlike previous patient safety legislation (P.L. 109-41), as passed during the Bush Administration. Although P.L. 109-41 facilitated the “creation of…a network of patient safety databases that provides an interactive evidence-based management resource for providers, patient safety organizations, and other entities” the bill (S 1784) would have focused on known errors, which are admitted immediately before they are even reported. By promoting early and immediate error disclosure, greater communication between patients and physicians would likely have been facilitated, thereby aiding in better patient safety and potentially reducing medical liability for physicians.

Although the bill was not passed in its original form largely due to the requirement of full disclosure, different variations of apology/disclosure laws have been enacted in various states. A few states have mandated the disclosure of certain events to patients, whereas others have adopted laws that protect apologies for unanticipated outcomes from being used in litigation.¹ Seven states including Nevada, Florida, New Jersey, Pennsylvania, Oregon, Vermont, and California have mandated that institutions disclose serious unanticipated outcomes to patients.² Perhaps the most stern of the state laws, Pennsylvania requires hospitals to notify patients in writing seven days after a “serious event.”³ Such communications are excluded as evidence of liability for the disclosed event.

In Massachusetts, Mass. Ann. Laws ch. 233, § 23D requires that “statements, writings or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to such person or to the family of such person shall be inadmissible as evidence of an admission of liability in a civil action.” Such a general applicability law protects only the expression of sympathy made after an unanticipated outcome. In other words, the statute is unclear about whether a statement of fault embedded in a statement of sympathy would be admissible in litigation.

Although most providers and patients agree that open communication is necessary for the physician-patient relationship from a moral standpoint, critics of such laws suggest otherwise. It has been argued that the narrowed wording of such laws prevents their true purpose from being realized.⁴ Regarding the Massachusetts law, since legal protections are unclear or perceived to be inadequate (only providing protection for expressions of sympathy), the fear is that health care providers will not provide all of the information that patients want about unanticipated outcomes. A physician who merely sympathizes rather than accepts responsibility may appear insincere and actually provoke a potential plaintiff.⁵ As such, apology laws may diminish the quality of physician-patient communication rather than improve it.

Additionally, critics of apology/disclosure laws argue that enforcement is a formidable challenge: “Without comprehensive adverse-event reporting systems and the substantial resources needed to audit charts and contact patients, it is extremely difficult for regulators to monitor the occurrence of disclosures, much less their quality.”⁶ Also, critics suggest that the nature of disclosures contradicts the true nature of physician-patient communications: “Disclosures are complex and subtle discussions and should be tailored to the nature of the event, the clinical context, and the patient-provider relationship; as such, they are not amenable to ‘cookbook’ rules specifying what information to disclose.”⁷ Finally, from a physician perspective, some physicians suggest that disclosure may actually harm the patient by disrupting the therapeutic relationship and making the patient unnecessarily anxious.⁸

Since apology/disclosure laws are relatively new in terms of enactment, their actual effect will not be known for many years. While we hope disclosure will chill possible litigation, it may actually ignite others, who would not have been notified of their injuries in the absence of such disclosure, into litigation. Accordingly, the true impact of disclosure laws depends on the balance between the two possible effects.⁹ We must also remain vigilant that the goals of apology/disclosure may be compromised if legislation is too narrowly or broadly drafted. While medical liability protections for healthcare providers is a necessary result of the law, such laws must also take into account the needs of the patient. If physicians remain wary of disclosing too much for fear of liability, what type of communication and transparency can actually exist? Perhaps better communication will come not only through the law but also through cultural changes within institutions that develop systems to support health care providers in conducting these necessary conversations.

Namita Agarwal is AyerHoffman's Health Law & Policy Contributor. Ms. Agarwal is currently a J.D. candidate at Northeastern University School of Law where she concentrates her studies on domestic and international health care, welfare, and immigration law.