4 3
O C T O B E R 2 0 1 4 | O U T P AT I E N T S U R G E R Y M A G A Z I N E O N L I N E
LEGAL UPDATE
more open discussion among physicians, patients and families, at
least 37 states have enacted "I'm Sorry" laws. Each one is different,
but their general intent is the same: to foster transparency and pre-
clude a physician's expression of apology, responsibility or remorse
from being admitted as evidence in the event of a malpractice action.
On its face, this type of legislation makes good sense. I've defend-
ed several malpractice cases that could have been avoided with bet-
ter communication. In my experience, one sure way for a physician
to get sued after unexpected results is to ignore the patient and fam-
ily members. Because while money steals the spotlight once a law-
suit is filed, the plaintiff's
initial motivation is to understand what went wrong and to get some
sense of resolution.
However, problems arise in the implementation and consistent
application of "I'm Sorry" laws. They can't script the conversation that
should follow an adverse outcome — there is simply no magic lan-
guage that is always protected — and both parties will have different,
or perhaps shrewdly constructed, recollections of the discussion
when depositions are taken years later. Every statement can be mis-
construed or manipulated to fit an exception.
The details of disclosure
Taking an overtly defensive posture is hardly a better option. Failing
to provide satisfactory answers can hurt a physician's defense, partic-
ularly since the American Medical Association's ethical rules and Joint
Commission standards both require openness with regard to unantici-
pated events.
The timing of this explanation can also be problematic. Patients and
families will want explanations immediately, leaving little time for
physicians to confer with risk managers or attorneys. It is advisable to
