For a while, it was a prevailing theory that shaped major legislation in thirty-six states: the idea was that patients don't sue doctors over their injuries as much as they do over their anger at being mistreated. The idea behind the "apology laws" was simple enough: if doctors were given the latitude to diffuse patient anger, make full disclosure of their mistakes and apologize for them to the patients, the patients would be less likely to sue. It hasn't worked out that way and now doctors and hospitals are starting to understand why. Here's what you should know.
An apology law prevents you from using your doctor's apology in court.
If your doctor apologizes to you for making a mistake, the apology laws stop you from bringing that apology into court as an admission of wrongdoing or negligence. The idea is to encourage full disclosure between the doctor and patient and to try to diffuse any anger the patient (or a surviving family member) might feel about being left in the dark about why a surgery or other medical procedure went wrong.
Study after study supported the idea. Apologies were supposed to foster a better relationship between the patient and doctor. They were thought to decrease the blame the patient might feel toward the doctor and be interpreted as an indication that steps would be taken to make sure that no one else suffered a similar fate. They were supposed to restore trust and reduce anger.
An apology law does not, however, stop you from taking the doctor or hospital to court.
Surprisingly enough, the apology laws have been a flop. The most recent study, conducted by Vanderbilt University, indicates that not only do apology laws not prevent surgeons from getting sued over a medical mistake that injures the patient, they make it more likely than ever that the patient will end up suing a non-surgeon, like a general practitioner, who apologizes.
Why? Because the laws forgot to take into account a couple significant factors. Prior to the apology laws, surgeons who made a mistake and apologized also offered a settlement for the patient's injuries, pain, and suffering. They didn't just apologize and expect that to be the end of the issue.
Additionally, prior to apology laws and full-disclosure programs, a lot of medical mistakes went documented. It was estimated in 2003 that less than 30% of physicians documented their mistakes. Now, doctors who feel protected by apology laws are more inclined to admit to an error—which ends up alerting a patient that "something" went wrong, while before they may have just interpreted a bad outcome as bad luck, not medical error.
Patients sue because they are injured, not because of hurt feelings.
Hurt feelings may make a patient angrier and cause them to express their outrage more openly, but the reality is that patients aren't undertaking the difficult process of a personal injury suit because of hurt feelings. They're going to attorneys because they're actually injured. Those injuries cost them in terms of degraded health, longer recovery times, additional procedures and treatments, more lost work or opportunities, more loss of enjoyment of life, and more pain and suffering. That's ultimately what the lawsuits are about.
If you've been injured due to a medical mistake, it's all well and good if your doctor apologized. However, unless that apology was offered along with a reasonable settlement for your injuries and suffering, you have every rational reason in the world to contact a personal injury attorney and sue.