Alaska Passes An I’m Sorry Bill for Medical Malpractice

In an attempt to reduce the number of medical malpractice cases brought in the state, Alaska lawmakers have passed a bill that would make apologies from doctors to injured patients and their families – due to doctor or hospital error – inadmissible in a court of law.

The right to file a medical malpractice lawsuit is not in question. All sides agree that a patient’s ability to sue puts the power of health care delivery where it clearly belongs – in the hands of the patient. The issue at the heart of the Alaska statute is whether a doctor’s apology should be admissible in the event a suit is ultimately filed. The bill clearly states that any expression of apology or sympathy made along with an admission of liability or negligence would still be admissible. Proponents of the Alaska law point to studies showing it has resulted in significant cost savings in other states.

Still, “I’m sorry” laws continue to be the subject of much debate – not surprising when one considers the often conflicting needs of the various parties involved. Patients (and their families) want to be able to sue for damages when there has been injury or death due to negligence. The insurance industry wants limits placed on what constitutes the legal basis for a malpractice suit, but they are sometimes criticized for wanting to limit patients’ rights. Of course, doctors and healthcare providers want lower malpractice insurance rates.

Lawyers on both sides have a financial incentive to facilitate and defend lawsuits. In fact, many believe that the rising costs associated with medical malpractice are not a problem at all. They point to a review of malpractice claims by Johns Hopkins researchers indicating that those costs “added up to roughly $1.4 billion a year, making up far less than 1 percent of national medical expenditures in the United States.”

The American Medical Association states that when a patient suffers significant harm due to negligence, “the physician is ethically required to disclose to the patient all the facts necessary to ensure understanding of what has occurred.” While most physicians would agree with this principle in theory, full disclosure has not always been the norm. [3]

In theory, as long as a doctor does not admit to negligence, nothing the doctor says would be admissible in court. In reality, however, there is often a thin line between an apology for the fact that something went wrong and an admission of negligence. While “I’m sorry” laws enacted in other states have led to the number of malpractice lawsuits filed, doctor’s will still have to be prepared to at least occasionally walk that thin line.