Why "sorry" is such a loaded word for doctors

• Nearly 40 states have laws allowing doctors to say "sorry" to patients for bad diagnoses, procedures and outcomes.
• Those laws prohibit using the apology as evidence in a malpractice lawsuit.
  
• But patients often don't file suits because they don't know they've been injured by a doctor and because lawyers can't afford cost of going to court.
• Still, botched medical procedures do lead to malpractice suits when big settlements are possible.

Should doctors, specialists or surgeons apologize to patients if they think they've made a mistake that caused an injury? Many in the medical profession have feared that admitting to being wrong, even if unintentional, would subject a doctor to a malpractice lawsuit by one of the many TV lawyers stalking the airwaves.

"The thought of apologizing for a bad result was anathema," said Dr. Darryl Weiman, a professor at the University of Tennessee. "The apology may be … interpreted by the patient as physical negligence."

But now 37 states have adopted "apology laws" allowing medical professionals, which could include nurses or therapists, to admit an error -- even in writing -- without having the apology used against them in court.

Proponents of these laws say they're good because everyone can make a mistake. Admitting the error, even one as serious as failing to detect cancer early on, could help the relationship between doctor and patient, they say, and also clear the doctor's conscience of unnecessary guilt.

Insurers that provide medical malpractice coverage also hope such laws will minimize the number of resentment lawsuits. Indeed, the lack of "forthright communication" with the injured patient probably makes a malpractice suit more likely in the long run, according to Dr. Weiman.

Does "apology legislation" work?

But a recent study by Vanderbilt University entitled "Sorry Is Never Enough" indicates that all this "apology legislation" isn't working. Vanderbilt's Owen Graduate School of Management analyzed malpractice claims for 90 percent of the nation's health care providers in a single specialty, both surgeons and nonsurgeons.

The study found that about two-thirds of the suits went to court and that state apology laws made no difference -- at least for surgeons. For nonsurgeons in states with apology laws, however, these claims were 46 percent more likely to result in a lawsuit. The Vanderbilt researchers said this was "probably" due to the fact that surgical errors -- such as leaving a sponge inside a patient -- were more obvious than failing to diagnose a symptom such as a shadow that could represent a tumor or whether a patient is suicidal.

"The truth is, one of the things that makes my clients suspicious is when the doctor is too nice to them," said Allan Zelikovic, who heads the medical malpractice division at law firm Weitz & Luxenberg. "A normally gruff guy suddenly put his arm around you …"

Medical malpractice lawsuits have dwindled in recent years and are now only about half of what they were at the turn of the century, according to a study by Dr. David Belk. One big reason: Everyone is angry about the cost of health care and looking to do something about it. One thing states and the federal government have done is tighten the requirements for filing a malpractice suit and proving wrongdoing.

Fewer and smaller settlements

The number of paid settlements against medical doctors (MDs) and doctors of osteopathy (DOs) declined from 16,000 in 2001 to around 8,500 in 2016. Settlement amounts also fell from more than $6 billion (in 2017 dollars) to less than $4 billion, according to Dr. Belk's study.

One reason is that many patients who suffer medical negligence never file suit. In a Harvard University study, only eight of 280 patients actually filed claims. The second reason is cost, which discourages lawyers from taking smaller cases because the lawyers would bear the initial burden of having the case heard in court, and that could amount to between $100,000 and $200,000.

"The doctors' lobby has convinced legislatures to cut our fees," said attorney Zelikovic. "So it's a heavy up-front load."

All of which means a bigger payday at the courthouse is needed to make the effort worthwhile. Dr. Belk's study shows that while settlements in smaller cases are way down, the number of cases in which the payouts are $500,000 or more have remained relatively stable. Apparently, it's all about the payout, not the apology.

Many lawyers don't really want doctors to apologize. As the website sorryworks.net said: "Personal injury attorneys often say they want no mention of 'sorry' in the courtroom."