The Flaws in State 'Apology' and 'Disclosure' Laws Dilute Their Intended Impact on Malpractice Suits

Apologies are rare in the medical world, where health care providers fear that admissions of guilt or expressions of regret could be used by plaintiffs in malpractice lawsuits. Nevertheless, some states are moving toward giving health care providers legal protection so that they feel free to apologize to patients for a medical mistake.

Advocates believe that these laws are beneficial for patients and providers. However, this analysis of "apology" and "disclosure" laws in 34 states and the District of Columbia found that most of the laws have major shortcomings. These may actually discourage comprehensive disclosures and apologies and weaken the laws’ impact on malpractice suits. Many could be resolved by improved statutory design and communication of new legal requirements and protections.

Practical policy options do exist for state legislators to increase transparency with patients. By understanding the relationship between disclosure and apology; ensuring that broad legal protections for disclosed information are in place; and collaborating with all key stakeholders, including health care institutions, states can support the development, evaluation and dissemination of effective disclosure and apology programs.