Flawed State apology and disclosure laws dilute their intended impact on malpractice suits
Research Activities, February 2011, No. 366
Patients expect that they will be told about medical mistakes or errors—an expectation that is increasingly being codified into State laws. A key barrier to more open communication between providers and patients is the concern that such conversations might precipitate lawsuits, especially when an adverse health outcome may have been preventable. Many States have responded by passing laws encouraging health care providers to discuss unanticipated outcomes with patients. One approach uses "apology laws" to protect aspects of a provider's conversations with a patient from use as evidence of liability in a lawsuit. A second approach, using "disclosure laws," typically mandates disclosure of certain unanticipated outcomes to patients and may protect the communication from being used in a legal or administrative action. An analysis of apology and disclosure laws in 34 States and the District of Columbia has found that most of these laws have major shortcomings, and may actually discourage comprehensive disclosures and apologies and weaken the laws' impact on malpractice suits.
There are a number of reasons for these shortcomings. Since disclosure laws require only a bare-bones statement that an unanticipated outcome occurred, the authors believe that these laws do not require the key information that patients want communicated to them following an unanticipated outcome. Most apology statutes protect only an expression of sympathy, failing to appreciate the importance of providing additional information to patients. For these and other reasons, narrowly crafted disclosure and apology laws might not achieve their objectives of fostering transparency and deterring lawsuits, note the study authors. For example, in States with sympathy-only statutes, the legal system will have to determine exactly what constitutes a protected expression of sympathy and what constitutes an unprotected explanation or admission of fault. The impact of mandatory disclosure laws may be limited by the difficulty of enforcing them.
The authors have not found any States with disclosure laws that have plans to monitor the occurrence or quality of disclosures. To assist in correcting these flaws, the authors recommend that disclosure requirements should acknowledge both patients' needs and providers' anxieties about legal risk; disclosure and apology should be considered as an integrated process; and legal protection should be broad, in order to encourage comprehensive disclosures and willingness to accept responsibility for error. This study was partly supported by the Agency for Healthcare Research and Quality (HS14012, HS16506).
See "The flaws in state 'apology' and 'disclosure' laws dilute their intended impact on malpractice suits," by Anna C. Mastroianni, J.D., M.P.H., Michelle M. Mello, J.D., Ph.D., Shannon Sommer, and others in the September 2010 Health Affairs 29(9), pp. 1611-1619.