While parents may teach their children to apologize to someone whom they have mistakenly harmed, as a general rule (owing to evidentiary rules) attorneys do not usually proffer similar advice to clients (defendants) confronting civil litigation. Partly in an effort to more closely align legal rules to better align with what many moms and dads demand from kids, in the medical malpractice context a growing number of states have adopted "apology laws." "The basic rationale behind apology laws is that meritless malpractice claims are less likely to be filed when a physician can apologize to his or her patient without risking those statements being used in court."
Of course, the policy rationale lends itself to empirical testing and, to this end, a recent paper by Benjamin McMichael (Vanderbilt--Grad School of Management), The Failure of 'Sorry': An Empirical Evaluation of Apology Laws, Health Care, and Medical Malpractice, exploits a unique dataset and reveals how "apology laws" fall short of their objectives. An excerpted abstract follows.
"First, it shows that while apology laws may reduce the frequency and size of malpractice claims as intended, they may also have a perverse effect on patients’ propensity to litigate. If a physician knows more about whether a patient’s injury was caused by malpractice than the patient, an apology could alert the patient to that malpractice and encourage the filing of a claim.
Second, the article provides the first empirical analysis of the effect of apology laws on clinical outcomes, investigating their ability to reduce the practice of defensive medicine. Examining over 1.6 million hospital stays for heart attack patients, the article finds no evidence that apology laws reduce defensive medicine. Apology laws do not decrease the intensity of treatment received by patients. In fact, they increase the medical resources used to treat heart attack patients, consistent with an increase in defensive medicine. Based on these empirical findings, the article concludes that apology laws are not effective tort reforms and that states should look to other policies if they wish to achieve the goals of apology laws.”