Document Type

Article

Publication Date

2009

Publication Information

35 William Mitchell Law Review 1410 (2009)

Abstract

The role of apologies in litigation has received a great deal of attention in the last ten years. This is particularly true of “medical apologies,” those expressions of regret and, in some cases, admissions of responsibility made by health care professionals. Two recent trends have prompted examination of medical apologies. First, widely reported empirical studies suggest that patients and their families may be less likely to bring malpractice lawsuits following adverse outcomes if treating physicians have apologized. Second, over about the past ten years, two-thirds of the states have adopted statutes that exclude these apologies from evidence if there is a later malpractice trial. Minnesota finds itself in the forefront of one of these trends and at the tail end of the other. For the last several years, the health care profession has given substantial attention to the importance of robust physician-patient communication following adverse medical events. Minnesota stands as a leader in adopting both medical standards and statutory requirements meant to foster disclosure and reporting in the aftermath of adverse health events. In contrast, Minnesota remains in the minority of states that have not adopted a statute or rule excluding medical apologies from litigation.

This article argues that Minnesota’s current approach is exactly right. It is a mistake to attempt to use evidentiary standards to improve physician-patient communication. Our principal objection to these statutes does not stem from either the nature of doctors or the nature of apologies, but the nature of lawyers. Creating an evidentiary exclusion for medical apologies would inevitably enmesh lawyers in the most sensitive of conversations. That would be a mistake. This article reaches its conclusion after examination of the medical culture surrounding communication between doctor and patient; a review of the evidentiary considerations that gave rise to these types of statutes and an examination of Minnesota’s own experience with disclosure following adverse medical events. It is, no doubt, easier to draft evidentiary rules than to change medical culture, but more profound change will come from focusing on what happens in hospitals rather than what happens in courtrooms.

Comments

This article is co-authored by Lucinda E. Jesson, Hamline University School of Law.

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