A Federal Standard for the Protection of Apologies Following Medical Harm

Abstract

The essence of the findings and conclusions in this paper is that the federal government should enact an apology law protecting full apologies in civil “medical harm” cases, meaning a law that protects statements, affirmations, gestures or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence in writing or verbally given by the provider or an employee of the provider, the organization, or a representative of the organization.Once such a law has been enacted, education and training for existing and new providers should occur to prepare them for the difficult apologetic conversations with the patient, the patient’s family and the provider’s organization in the event of medical harm. The federal support of full apologies will encourage their use following harm, allowing the benefits to be realized throughout our judicial and healthcare systems.

With a federal law protecting full apologies, providers will no longer feel that following a patient’s medical harm “sorry seems to be the hardest word.”  Protecting full apologies by federal law will provide many benefits that include: avoiding lawsuits; increasing settlement rates for compensable cases by working in conjunction with alternative dispute resolution (“ADR”); decreasing overall administrative costs as compared to litigating cases, thereby decreasing the costs of malpractice insurance and healthcare overall; and encouraging natural-healing communication between the parties involved following a harm event.