​State apology laws that prohibit using a physician's apology against him or her in a malpractice lawsuit do not reduce risk of medical malpractice liability, according to a Vanderbilt University study published on December 12, 2016. In fact, the authors said, except for surgeons who regularly perform surgery, a physician's risk of facing a malpractice lawsuit is higher in the states that have apology laws on the books. The authors analyzed 3,417 malpractice claims from a national malpractice insurance database that included information on 90% of all U.S. physicians practicing a single specialty from 2004 to 2014. The data include all claims filed against a physician whether or not they resulted in a lawsuit or payment. The average payment made to resolve a claim was also higher for (nonsurgeon) physicians in states with apology laws, when compared with states that do not have the laws. The results suggest that apologies "contain signals of malpractice that encourage patients to pursue lawsuits and larger indemnity payments," the authors said. The authors suggested that initiatives such as the Agency for Healthcare Research and Quality's CANDOR (Communication and Optimal Resolution) process (see HRC Alerts, June 1, 2016), which promotes communication and disclosure following adverse events, may be better suited to achieve the goals of apology laws, because the laws do not provide physicians with advice on how to communicate with patients. Furthermore, the laws protect statements of sympathy from being used in court—but not fuller explanations of an error. As a result, the authors said, doctors may apologize without fully explaining the nature of the error, causing the patient to view the apology as insincere.

HRC Recommends: It is important to review applicable state apology laws. Next, evaluate the organization's process for disclosing adverse events. Do practitioners consistently follow the process? An organization should speak from "one voice" when discussing events leading to serious harm or death. The healthcare team should discuss the content and tone of the apology and come to an agreement before speaking with the patient and his or her family. Consult legal counsel if an event led to serious harm or death of a patient. Multistate providers need to review the apology laws in each state in which they practice and share state-specific information with all healthcare providers.