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TOPEKA — Can simply saying "I am sorry" help reduce the number of lawsuits filed in civil court?
Yes, say proponents of a bill that would allow doctors and others to apologize or express sympathy when something goes wrong — without having that held against them in civil court.
Senate Bill 374 isn't limited to health care providers, but it is being pushed by the medical community.
There's no statistical evidence that such laws reduce lawsuits, but anecdotal evidence shows apologies prevent lawsuits or make them easier to settle, said Nick Badgerow, an Overland Park lawyer who chairs the Kansas Judicial Council's civil code committee, which wrote the bill.
"There is a cathartic effect to everyone to feel that I was done wrong and the person who has done me wrong recognizes they've done me wrong," he told the Senate Judiciary Committee in a hearing last week.
Although the bill would allow someone to say "I'm sorry" and not have that held against them, any admission of liability could still be used in court, Badgerow said.
"If a doctor comes out and says to the family, 'I have sympathy for what happened, we are going to waive our fees, we have condolences for what happened,' " that would not be an admission of guilt, Badgerow said.
Things can go wrong
Thirty-five states have laws that protect doctors when they say "I'm sorry," according to the American Medical Association's publication American Medical News.
Even with the best training and the best facilities, sometimes things can go wrong, noted Dan Morin, director of government affairs for the Kansas Medical Society, in written testimony supporting the proposal.
"In those situations, physicians and other health care providers often want to express their concern and sympathy to the patient and his or her family, but are reluctant to do so for fear of having such expressions used against them as an admission of liability in the event of litigation," he wrote.
"Apologies can ward off lawsuits; however, there then is a need to ensure that a physician's words are not twisted into admissions of guilt."
Investigating problems
Most medical lawsuits aren't tied to people looking for big payouts, said Doug Wojcieszak, founder of the Sorry Works Coalition. "They are predicated on angry people who simply want answers and explanations."
The Illinois-based group advocates for a system that encourages communication and problem solving with patients and families after bad outcomes.
Laws, such as the one Kansas lawmakers are proposing, have some value, but a bigger impact would come from a cultural change where health systems develop policies that investigate problems and acknowledge mistakes, he said.
That approach is proving effective in Michigan, which does not have a law protecting doctors if they say "I'm sorry."
In 2001, the University of Michigan Health System started investigating what went wrong and making restitution when warranted.
The focus is not so much about apologizing but about telling the truth, said Rick Boothman, chief risk officer for the university's health system. He noted his hospital's doctors have the luxury of not facing personal financial ruin when a doctor in private practice might.
Fear of financial ruin is largely overblown, but it often drives what happens, Boothman said. "The fear is real and that fear alone really fuels the deny-and-defend mentality."
Medicine asks nurses and doctors to take calculated risks when operating on sick people, he said, so there has to be some protection when something beyond their control goes wrong.
The university's system allows medical professionals to examine what went wrong, if something did, and find ways to prevent repeats. If no mistake was made, they explain that to the patient, he said.
Boothman said he doesn't see the need for "I'm sorry" laws, but he supports anything that opens lines of communication.
The shift has created a culture that is more focused on patient safety and has saved money, he said.
When the program started in 2001, the university health system had 261 claims pending, and three-fourths of those were in court, Boothman said. Now there are 86 active claims with just 15 in litigation.
"That flip of the ratio has directly resulted from what we have done," he said.
Now, instead of filing cases, lawyers contact Boothman with problems and sometimes avert filing a claim in court, he said.
Doctors have embraced the program, he said.
"They are, as a group, people who find meaning for their own lives in helping others, so I think they take it harder when there is a bad outcome than the general population," he said. "I think their natural inclination is to talk to the patient."
Cost-saving move
"I'm sorry" laws are seen as a potential cost-saving move by the Physician Insurers Association of America, which represents medical liability insurers across the country that are owned and operated by medical professionals and cover about 60 percent of doctors.
Only about 5 percent of all medical liability claims go to trial and have a verdict, and four out of five of those verdicts are in favor of the doctors, said Larry Smarr, the association's president. But the cases that go to court cost about $100,000 on average.
"For every claim that doesn't come due to an 'I'm sorry,' that saves a lot of money," he said.
