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Seven Things To Know When You Receive A Notice Of Investigation From The Department Of Health

I'm Sorry Laws


by Michael L. Smith, J.D., R.R.T.

Approximately 30 states have enacted “I’m Sorry” laws, also known as “apology” laws. I’m sorry laws protect health care providers that make statements of sympathy following an adverse incident from having those same statements used as proof of their liability in a subsequent malpractice lawsuit.

Generally, I’m sorry laws only protect statements of sympathy or benevolent gestures and not actual admissions of fault or negligence. However, a few states have laws that allow a health care provider to actually admit their fault or negligence as part of an apology without that admission being used against the health care provider as proof of liability in a subsequent lawsuit.

Historically, health care providers were told to deny and defend every allegation of medical negligence even when the health care provider knew something went wrong. The old culture of denying and defending every claim is thought by some authorities to have created animosity toward health care providers and increased the actual number and cost of lawsuits. Angry people are more likely to file lawsuits, and angry people are less likely to settle their lawsuits early. Juries also do not like health care providers who staunchly deny their mistakes when it is shown later that the provider knew there was an error. Angry juries are more likely to award higher damages against disliked defendants.

I’m sorry laws may reduce the costs of medical malpractice claims by dispelling some of the anger that often follows a medical error and the denial of that error. However, it is still debatable whether there have been measurable decreases in the expense of medical malpractice litigation directly attributable to I’m sorry laws.

The Veterans Administration hospital in Lexington, Ky., voluntarily instituted its own self disclosure policy in the 1980s. The VA hospital’s self disclosure policy includes an explanation of the error, an apology, and an offer of compensation to the injured patient so it differs significantly from the majority of I’m sorry laws. The VA hospital has reported a significant drop in the number of lawsuits, but the hospital’s statistics also show that a larger number of patients were actually compensated for medical errors.

The University of Michigan Health System also instituted a self disclosure policy, which includes an explanation of the error, an apology, and an offer of compensation. The University of Michigan Health System has reported a significant decrease in the total number of claims, but it is doubtful that the reduction in claims is due entirely to the self disclosure policy. Most likely, the University of Michigan Health System also is experiencing a benefit associated with its other quality improvement measures.

Most insurance companies still advise their insured health care providers to avoid making apologies that admit faults, errors, or mistakes even in those states with the most expansive I’m sorry laws. Since the majority of respiratory therapists work for hospitals and other health care institutions, those RTs also should consult with their employers before making statements to patients concerning medical errors.

A few states have enacted laws that require mandatory disclosure of adverse incidents. For example, Florida has a law that requires licensed health care facilities to disclose adverse incidents that result in serious harm to a patient. The mandatory disclosure must be made by an appropriately trained individual designated by the facility, presumably the facility’s risk manager. RTs should leave any legally mandated disclosure to the individuals designated by their employers as responsible for those disclosures.

Michael L. Smith, JD, RRT is board certified in health law by The Florida Bar and practices at The Health Law Firm in Altamonte Springs, Florida. This article is for general information only and is not a substitute for formal legal advice.

This article was originally published in Advance for Respiratory Care and Sleep Medicine.