My bad

by David Nieporent on April 12, 2007

One of the common minor medical malpractice “tort reforms” that have been proposed in recent years is the “apology law.” That’s the law which permits doctors to apologize to patients for bad outcomes without having those apologies thrown back in their face at trial. (Reasonable, if relatively trivial.)Rhode Island is now looking at joining the 15 or so states that have enacted such apology laws, and over at the New York Personal Injury Law Blog and crossposted at Bizarro-Overlawyered, plaintiff’s attorney Eric Turkewitz endorses the bill, saying:

I’ve always believed, based on the manner in which calls come in to my office, that poor communication (bad bedside manner) is the primary reason patients call attorneys. They are angry, or confused, or both.

Now, the practical implication of that for doctors is clear: doctors should apologize. But he doesn’t seem to reflect on the implication of that for lawyers. If med-mal cases are brought based on anger over bad bedside manner rather than wrongdoing, then our med-mal system will punish bad bedside manner rather than wrongdoing.

In any case, Turkewitz mocks an insurance company which advises doctors who apologize — even if those apologies are protected — to apologize for the outcome but not to admit error, claiming that this sensible advice “encourages more of the same thing that has gotten docs into trouble in the past.” But Turkewitz doesn’t mention that even this extremely modest reform is too much for some trial lawyers. As quoted in the same article he cites:

Providence lawyer Steven Minicucci, who handles malpractice suits, said displays of compassion are rarely useful in building such cases. But an apology and an admission of error could be key evidence. He opposes the Rhode Island legislation.

“I like to call it the `I’m-sorry-I-killed-your-mother’” bill, Minicucci said. “If a doctor comes out and says something like that, he shouldn’t be able to immunize himself against statements like that by couching it in an apology.”

You’ve got to love that “rarely,” in “displays of compassion are rarely useful in building such cases.” Rarely, but hey, sometimes a trial lawyer can turn compassion against the doctor. And we wouldn’t want to stop that.

Speaking of apologizing (and updating an earlier story), I’m pretty sure that Mike Nifong’s apology to the Duke lacrosse players (“To the extent that I made judgments that ultimately proved to be incorrect, I apologize to the three students that were wrongly accused.”) is not going to cut it.

{ 6 comments }

1 Ima Fish 04.13.07 at 8:18 am

This apology stuff really does work. We had a medical malpractice case in the court where I work where the doctor had no malpractice insurance. He barely even had a defense attorney. He was just beginning his practice and had no money, so he hired a criminal defense attorney. And a second rate one at that.

In a settlement talk before trial the judge suggested that the doctor simply apologize in open court and pay just the costs. (The plaintiff’s attorney waived his fee, not all attorneys think they can get blood from turnips.) The plaintiff accepted the offer.

The doctor apologized, him and the plaintiff started crying, and quite ironically, everyone was happy.

2 Bryan M. Griffith 04.13.07 at 9:35 am

In a quick search (medical malpractice w/p (sorry or apolog!), it appeared to me that there were only about 10 cases in the country where an apology has played a role at the appellate level. The courts seem to outright reject the apology alone as sufficient evidence of malpractice.

3 Eric @ New York Personal Injury Law Blog 04.13.07 at 9:49 am

If med-mal cases are brought based on anger over bad bedside manner rather than wrongdoing, then our med-mal system will punish bad bedside manner rather than wrongdoing.

You have made an error. I didn’t say that was the reason the suits were brought. I said that that was the motivation for contacting an attorney. With better bedside manner, many such calls will never be made, even with negligence. There is no suit without negligence.

Second: While I may disagree with some of the political positions taken by writers in this forum, I have never made a personal attack against any. I don’t know why you chose to put my name in the same sentence with “bizarro” anything. The original post appears on my blog and the folks at a forum called TortDeform apparently believed their own readers may find it of interest and re-posted it.

–ET

4 Scott Replogle 04.13.07 at 10:48 pm

From a physician’s perspective, David N is correct and should be complimented on pointing out the logic and sensible purpose of such “tort reform”. It is comparable to the Good Samaritan laws that help prevent someone from trying to help a person in distress and then getting dragged into a negligence suit. This doesn’t happen often either but it should be protected even if it takes a law to “allow” it.

Apologizing is an appropriate human response and does not absolve a physician from true negligence but also shouldn’t be used as a weapon by the plaintiff attorney. Practicing defensive medicine under the constant threat of a malpractice suit is bad enough without being able to try to respond to patients in a caring manner when any form of bad outcome occurs. The net effect of threatening doctors in court with their words of apology or condolence is to keep physicians from saying such things. And I thought plaintiff attorneys were just trying to help people…

It’s true that the statistics show that poor communication and misunderstandings between physician and patient are a significant initiator of calls to lawyers but Mr. Turkewitz, in usual plaintiff attorney fashion, assumes the physician is guilty of malpractice and is just trying to get out of paying for it.

Poor beside manner is not malpractice and Mr. Turkewitz reveals his bias when he says that there is no suit without negligence. This is a plaintiff attorney myth. And this doesn’t even address the issue of plaintiff attorney advertising, ambulance chasing, and other forms of manufacturing liability lawsuits.

A better way to put it from the plaintiff attorney perspective would be there is no suit without money to go after. Allowing a physician to apologize without having it used against him or her is basic humanity. Why would the plaintiff’s bar be opposed to that?

5 OBQuiet 04.14.07 at 3:48 pm

Perhaps we could give Mr Turkewitz the benefit of the doubt and assume he meant there is no suit without a BELIEF OF negligence.

6 Deoxy 04.16.07 at 11:41 am

“I didn’t say that was the reason the suits were brought.”

Yes, you did. You said that they wouldn’t be brought otherwise.

You also said, “There is no suit without negligence.” So… I guess you haven’t read about 80% of the entries on this blog…

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