To Apologize or Not - Experts Weigh In

Whether medical practitioners should apologize after an adverse medical event is a question both philosophical and practical.

As with any quandary with such serious implications, there are sound points on both sides of the issue, says Jeffery Street, a medical-malpractice attorney in Portland, Oregon.

“The potential benefit of apologizing is to help open the door to understanding, resolution, and closure,” Street says. “It is good for people to talk, to heal, and to be open. Health-care providers are typically compassionate people, so why shouldn’t that compassion extend to an apology?”

An emotionally satisfying apology can offer practical benefits, too. “Psychologists and others believe that medical apologies can lead to fewer claims,” Street continues. “Often when a patient is deposed, we find that they sued because nobody apologized or contacted them to offer empathy or talk about next steps.”

In recent decades, this emerging understanding of the benefits of apology brought new legal protections for these types of communications. According to the National Conference of State Legislatures, most states have laws in place to protect apologies from providers after adverse medical events. Medical apologies are protected by law in Physicians Insurance’s member states of Alaska, Idaho, Oregon, Washington, and Wyoming.

Broadly, this means that when apologies made by health-care practitioners or organizations to an affected person or their family meet certain criteria, these statements are inadmissible in court, and thus can’t be used against the provider or organization in a legal setting. By protecting health-care workers who apologize to patients or their families, these laws help to break down longstanding barriers discouraging communication between doctors and patients after an adverse event.

Though slight differences may exist between state statues, they are mostly similar in their intent and their content, says Mark Louvier, a medical-malpractice attorney in Spokane, Washington. When guided by legal counsel with a current understanding of the state’s current medical-apology laws, apologies can benefit both parties.

Physicians can follow established guidelines to craft an effective, empathetic apology without opening the door to legal repercussions, Louvier says. He recommends that providers engage a malpractice attorney before issuing any apology, that they craft an apology that offers empathy without assigning fault or blame, and that they consider using a written apology that’s been reviewed by counsel, as opposed to a verbal apology. “Compared to verbal apologies, written apologies can help avoid ambiguous language, and they can be reviewed by an attorney before they're given to the patient,” he says.

Of course, an apology after an adverse event can impede rather than foster resolution, particularly when it doesn’t meet a state’s criteria for legal protection. “Skeptics say apology doesn’t reduce the chance of litigation; rather, it can be used against the provider,” Street says.

Indeed, apology-protection statues do not protect every expression of remorse or regret on behalf of providers. For example, protected apologies must be made by and to the appropriate parties—or the statements may be admissible in court.

“Compared to verbal apologies, written apologies can help avoid ambiguous language, and they can be reviewed by an attorney before they're given to the patient."
- Mark Louvier, Medical-Malpractice Attorney

In general, apologies made by a healthcare provider or organization to a patient or a patient’s friends and family are protected by law, while statements of apology made to other people are not. “This means that if a provider expresses remorse about an adverse event to someone completely unrelated to the event, that could be admissible in court,” says Louvier.

To qualify for legal protection, apologies are required by most states to be made to the patient or someone close to the patient, like a family member, friend, or domestic partner. While some states, including Wyoming, extend apology protection to apologies made to a patient’s attorney, many states’ statutes do not have this provision.

Timely apology is also important, notes Street. In Washington, for example, protected apologies must be made within 30 days of the discovery of alleged negligence. Late apologies—even those that meet the other criteria for protection—may be admissible in court.

When a poor outcome impacts a patient and their family, apologizing often feels like the right thing to do, says Street. With appropriate guidance from the right experts—an attorney skilled in medical malpractice, an insurance-claims representative, and risk-management personnel—apology can promote compassion, empathy, and healing for all people involved in a medical error, without leading to further complications.



Jeffery Street, medical-malpractice attorney in Portland, Oregon
Mark Louvier, medical-malpractice attorney in Spokane, Washington