By Alessandra Suuberg, Decency LLC
Everyone makes mistakes—well-intentioned healthcare providers not excluded.
In general, in the medical context, mistakes can give rise to malpractice claims under state law if an affected patient is able to assert that (1) their provider (e.g., doctor) owed them a duty, (2) the provider violated a standard of care, (3) the patient suffered harm, and (4) the harm resulted from the violation.
The purpose of medical malpractice laws is to help remedy patient harms financially. Patients who succeed in these cases can recover hundreds of thousands of dollars or more.
On the provider side, malpractice laws can also influence decision-making, given doctors’ and other professionals’ expectation of being sued and their desire to avoid that risk. (For more on this related topic, see June 2007 comments here by Lee Black, LLM in the AMA Journal of Ethics, on “defensive medicine.”)
To illustrate with a relatively well-known example: Malpractice litigation can influence providers’ readiness to apologize when something goes wrong.
While some professionals may avoid admitting their mistakes due to pride or for various other reasons, the fear of liability can also help keep them from saying they’re sorry—for example, if they are advised not to say anything to patients or families that could later be used against them in court.
For this reason, state medical professional apologies statutes (“‘I’m sorry’ laws”) limit how professionals’ expressions of condolence or apology can be used in malpractice cases. However, these laws can in turn pose further complications, for example if providers end up making an apology they believe is covered by the statute but actually isn’t.
Thus medical professional apologies statutes, their underlying motivations, and their consequences typify the complexities of addressing and remedying patient harms and maintaining a “decent” healthcare system.
Mired in this complexity, one can also wonder how far an acknowledgement and apology would go in terms of remedying harms, in some cases.
Whereas a win in court and financial damages provide a third-party acknowledgement and remedy, sometimes human nature demands a sincere and unequivocal admission by the wrongdoer, for the wronged (and the wrongdoer) to be made whole and further harm to be avoided.
Would you agree?
Disclaimer: The information and opinions on this site do not include legal advice or the advice of a licensed healthcare provider.