"Evidence Shows Apology Laws Are Largely Ineffective"

Relias Media - Healthcare Risk Management
01.01.2022

Roger Harris was quoted in an article from Relias Media's Healthcare Risk Management newsletter. The article discusses the minimal effects of the state laws protecting clinicians who apologize after an adverse event, going on to explain that these apology laws do not reduce malpractice rates.

"In some cases, plaintiffs’ attorneys have used apology laws against clinicians during malpractice trials," says Roger Harris, J.D., partner with Swift Currie in Atlanta. Georgia’s expansive apology law protects most statements conveyed as part of an apology to the patient or family, but Harris has seen attorneys use it to prevent clinicians from expressing regret or remorse when testifying as part of a malpractice trial.

The plaintiff’s attorney can successfully argue the apology law means any type of apology or expression of compassion is inadmissible and not permitted during testimony. That was not the intent of the legislature when it passed the apology law, but because of plaintiff’s attorneys using it against physicians, Harris calls the Georgia apology law “the anti-human being statute.”

“They assert that the stature prevents what any reasonable human being would want to do at the point they take the stand in the trial — which is very often the first time they’re encountering these family members again — and that is to take the stand and say, ‘I’m sorry this happened,’ or ‘I’m sorry this was the outcome, but I don’t believe I deviated from the standard of care,’” Harris explains. “As opposed to being a shield, it became a sword to prevent the jury from being able to see and appreciate that these healthcare providers were, in fact, real human beings with real human feelings and real human emotions.”

"Clinicians struggle to testify without stating any concern for the patient and family members or saying they regret how the case turned out," Harris says. "The jury might view the doctor as having no feelings or emotions about the case, which is usually far from the truth."

The law has only negatively affected malpractice cases in Georgia, with none of the intended effect of encouraging honest communication with patients and families, in Harris’ estimation.

“In those moments after a poor outcome, people are going to say what they need to say to the patient and family members in terms of being sorry and regretful about the outcome,” Harris says. “Doctors and nurses and other providers are not thinking about the statute when they are dealing with a distressed family. This statute is hardly even talked about anymore, except when plaintiffs’ lawyers file motions to preclude statements at the time of trial.”

For the full article from Relias Media, please click here.

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