Medical Malpractice and the “Apology Rule” Trick
As a medical malpractice attorney, I like to know the insurance defense industry’s tricks. A recent article published by the Monthly Prescribing Reference discusses one of them. The article addresses the frequent failure of health care providers to empathize with patients who have suffered as a result of adverse outcomes and medical malpractice. These “expressions of empathy” are a trick designed to deter people from holding negligent health care providers accountable in court.
Frequently, when I meet with new clients, they tell me about how they went into the hospital for a routine procedure only to wake up hours–or sometimes days–later having suffered a catastrophic injury. While it is true that there can be known, unavoidable complications in medicine, often, the additional injuries are the result of negligence and poor communication among the medical team. Patients feel like insult has been added to injury when none of their doctors will tell them what went wrong.
Health care providers aren’t dumb; they know when they’ve made a mistake. More often than not, if a doctor or other clinician knows that an error was made due to negligence, they get tight-lipped, they do little follow-up, and no matter what, they never tell the patient. People who trusted a professional to provide necessary health care often feel abandoned and start looking for answers to the questions that the doctors just won’t answer. This usually leads to them contacting a medical malpractice lawyer.
Insurance companies and the corporations that run hospitals know this, and they don’t like it. As a result, they have been encouraging physicians and other providers to offer carefully worded statements of “empathy.” As the article puts it, doctors are being “trained to express empathy without admitting fault.” It is rare that a negligent provider will come right out and admit their mistake–I’ve seen it once in hundreds of malpractice cases and in over ten years of practice–but more and more frequently doctors will offer rehearsed speeches designed to discourage injured patients from pursuing a malpractice claim.
They feel safe doing this, because the medical lobby has passed laws designed to keep such statements out of court. In Utah, the law says that “expressions of apology” are inadmissible in court. This so-called “Apology Rule” allows negligent health care providers to say they’re sorry…they just don’t have to mean it.
Fortunately, the Utah Court of Appeals recently narrowed the scope of the Apology Rule. In Lawrence v. MountainStar Healthcare, a nurse negligently administered an injection intravenously (into the vein) instead of subcutaneously (under the skin). After the patient suffered a severe reaction, crying out in pain, vomiting, experiencing heart palpitations, and other symptoms, her treating providers and hospital risk managers admitted a mistake had been made. They even went so far as to say, “[Y]ou don’t have to worry about it. We’ll take care of you. Things are going to be okay”; “You don’t have anything to worry about on your end. We’ll make sure it’s taken care of”; and, “[E]verything is going to be okay. Things will be taken care of.”
Of course, things weren’t taken care of, and the patient had to take the hospital to court. There the hospital’s team of lawyers fought to keep statements acknowledging error and promising to take care of the patient out of court under the Apology Rule, and the jury never heard about them.
Not surprisingly, the patient lost.
But on appeal, the appellate court decided that admissions of fault are not apologies, and the jury should have heard them. This case was a huge victory for injured patients, and helps to minimize the effectiveness of the insurance companies’ “Apology Rule” trick.