APOLOGY IN RESOLVING MALPRACTICE CLAIMS
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The Effects of Apologies on Malpractice Lawsuits
Kelly Shomo
Liberty University
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Abstract
My research paper is to find information and to explore all types of ethical and legal aspects of
malpractice claims that are made throughout the healthcare system, and to address what affect
apologizing may have on the malpractice claims. We need to apologize for our actions when we
do anything that affects another person in a negative way. How to provide a patient with
emotional support, and to help them feel better about an issue and help them feel less inclined to
file a report for a malpractice claim is to acknowledge you did something wrong and you
apologized for the wrongdoing. However, most providers will not say they are sorry even though
there are positive benefits from apologizing. My research paper will explore and examine the
reasons why providers worry about apologizing and will explore the laws that are in place to help
maintain a provider- patient relationship.
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Healthcare malpractice happens a lot more than people tend to realize. In every
healthcare facility whether it be a medical center, doctors office, or hospital they all will
experience medical errors at some point but the way that they deal with these medical errors is
what will make the difference on if a patient feels confident that you will make the issue right.
John Hopkins recently did a study that states “Medical Errors are the third-leading cause of death
after heart disease and cancer” (Daniel, 2018). Preventing all of medical errors is almost
impossible, there are though many ways that can help eliminate and resolve these errors that
could potentially bring down the number of medical malpractice claims and lawsuits against a
healthcare professional. The Bible states, in Romans 12:10 “Love one another warmly as
Christians, and be eager to show respect for one another” (ESV). How we treat other and how
mature we are about a situation will make all the difference in the world. If you have respect and
you respect your patients enough to be able to apologize for your wrong doing and if you are
able to talk through what errors you have made could be the determination of whether a patient
will file a malpractice lawsuit or not. My research paper will look at and discuss what the affects
of apologizing does and can have on a malpractice lawsuit, and how it can affect all parties that
are involved, it will also look into whether or not an apology can be perceived as an admission to
a malpractice lawsuit. It will also look at what laws are in place for providers that encouraging
them to apologize without becoming a liability to the claim.
When we do something wrong and whatever they did affects another person in a negative
or hurtful way we are always taught to apologize for our actions to that person that was affected
by whatever we did. If we have any respect for the person that we have hurt or done something
wrong to apologizing is the right thing to do, if we apologize it shows the other person/party that
we truly do care and we value the relationship that we have with them and that we are regretful
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of whatever we did to hurt them. Being apologetic is not just important for our own personal
relationships but it can also help and be beneficial in our professional relationships. If a patient
has a good relationship with their provider over someone who does not have a good relationship
could be the deciding factor if they are going to file a malpractice claim after experiencing a
medical error by their physician or any medical staff. A patient sometimes only wants a
straightforward answer for what went wrong that caused the medical error. The author of “The
Medical Apology: Who and How? Frontiers of Health Services” stated, “providers who have
good communication skills and speak to their patients authentically have lower rates of being
sued” (Welch, 2012). Being a provider and just acknowledging that there is an issue and
apologizing to the patient for the error provides that patient with emotional support that can
make the patient feel better about what happened, and if they feel better about what happened
they will be less inclined to file a malpractice lawsuit. One study suggests, “when deployed and
structured appropriately, apologies can heal patients, families, and providers and can enrich
clinical encounter” (Heaton, Campbell, Thompson, & Sadosty, 2016). If a physician apologized
for a medical error, it would help show the patient that the physician values their relationship
with that patient and this will be helpful in any physician’s career. However, there are some
studies that argue that “apology laws have no statistically significant effect on the probability
that surgeons experience either a non-suit claims or a lawsuit” (McMichael, 2017). My person
opinion however is that all providers should always apologize for any medical error that may
occur because of something that they did wrong, even if apologizing for what they did does not
reduce the probability of a malpractice claim being filed. If your apologies for something that
you did wrong it will show that you have good manners and you are respectful of the patient. As
the Bible says, in Philippians 2:3 “Don’t do anything from selfish ambition or from a cheap
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desire to boast, but be humble toward one another, always considering others better than
yourselves” (ESV)
In most cases physicians are often very reluctant to apologize and say that they are sorry
even if apologizing has positive benefits. Most physicians will not say they are sorry because of
their ego, or they are afraid to admit that they had done something wrong and they fear what
would happen to them if they do apologize. Most people think that if they apologize, they are a
weak individual. However, being a weak individual for apologizing is usually not the case, it
takes a strong and confident person to be able to admit that they were in the wrong and made an
error. In our textbook “Law & Ethics for Health Professions” states that “35 states have passed
some for on “I’m Sorry” legislation that allows physicians to offer some form of confidential and
inadmissible (in a court) apology to the patient” (Judson & Harrison, 2019 pg.125). Do to the
different medical practice usually each medical practice will have their own law department, the
law department of your facility should always be consulted first before speaking to a patient
regarding the medical error that has happened. The reason a physician should consult with their
law department first is because the state that they are practicing in may have laws around
apologizing to a patient that the physician may not be aware of, and if they apologize to the
patient first hand and it does go to court it could affect the way the malpractice claim is handled.
One study suggests “ apology laws also reduce the amount of time it takes to reach a settlement
in what would normally be protracted lawsuits, leading to more resoled cases in the short run and
in the long run, there could be fewer cases overall” (Ho, & Liu, 2011).
Most often people will forget that a mistake is not intentional, but it is just that a mistake,
and everyone is human, and we all make mistakes every day and sometimes the mistakes cannot
be prevented. We just need to make sure that we are upfront about the mistake that we made and
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how it was made, and that we make sure that we take ownership for the mistake if we are the
ones who truly caused it, and not trying to blame it on somebody else. Physicians need to make
sure that they always tell the truth when apologizing to the patient or the patient’s family for
whatever mistake happened. Another study also found that “empathy, corrective action, and
compensation in addition to an apology can greatly reduce the number of lawsuits filed by
patients as well as enhance the relationship between the provider and patient” (Nazione & Pace,
2015), The thing that matters the most in all of this is how you respond and make sure that you
learn from your mistake and it never happens again.
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References
Nazione, S., & Pace, K. (2015). An experimental study of medical error explanations: Do
apology, empathy, corrective action, and compensation alter intentions and attitudes?
Journal of Health Communication, 20(12), 1422-1432.
doi:10.1080/10810730.2015.1018646
Judson, K., & Harrison, C. (2019). Law & ethics for health professions. New York, NY:
McGraw-Hill Education.
Gailey, L. (2015). "I'm sorry" as evidence? why the federal rules of evidence should include a
new specialized relevance rule to protect physicians. Defense Counsel Journal, 82(2),
172.
Heaton, H. A., MD, Campbell, Ronna L., MD, PHD, Thompson, K. M., MD, & Sadosty, A. T.,
MD. (2016). In support of the medical apology: The nonlegal arguments. Journal of
Emergency Medicine, 51(5), 605-609. doi: 10.1016/j.jemermed.2016.06.048
Ho, B., & Liu, E. (2011). Does sorry work? the impact of apology laws on medical malpractice.
Journal of Risk and Uncertainty, 43(2), 141-167. doi:10.1007/s11166-011-9126-0
McMichael, B. J. (2017). Study: Apology laws Don’t reduce malpractice claims. Healthcare Risk
Management, 39(3)
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Welch, S. J. (2012). The medical apology: Who and how? Frontiers of Health Services
Management, 28(3), 42-46. doi:10.1097/01974520-201201000-00006
