"I'm Sorry" legislation, an alternative to medical malpractice damage award caps?

"I'm Sorry" States

• Arizona • California • Colorado • Florida • Georgia • Hawaii • Idaho • Maryland • Massachusetts • Montana • North Carolina • Ohio • Oklahoma • Oregon • Texas • Virginia • Washington • West Virginia

Source: The Sorry Works! Coalition

"I'm Sorry" legislation allows physicians (and in some cases other health professionals) to apologize to patients without their statements being construed as admissions of negligence in medical malpractice lawsuits. Under the theory that hearing an apology is often enough to keep some people from suing medical practitioners, the intent of "I'm Sorry" legislation is to encourage open communication between patients and physicians by protecting what physicians say. See summary of survey results in below table, "Forgiving a Physician."

Iowa & Michigan Move Forward with "I'm Sorry" Legislation
Yesterday, the DesMoines Register reported that the Iowa House approved "I'm Sorry" legislation by a vote of 77-22. Commenting of Iowa House File 2716, Rep. Kraig Paulsen (R) said

The whole point is so doctors and professionals can have a bedside manner where they are able to express some sympathy when an outcome is adverse, regardless of whether there is negligence involved. You ought to be able to say, 'I am sorry the surgery did not go well.'

The language of Iowa House File 2716 is typical of "I'm Sorry" legislation.

 
  1  1    Section 1.  NEW SECTION.  622.31  EVIDENCE OF REGRET OR
  1  2 SORROW.
  1  3    In any civil action for professional negligence, personal
  1  4 injury, or wrongful death or in any arbitration proceeding for
  1  5 professional negligence, personal injury, or wrongful death
  1  6 against a person in a profession represented by the examining
  1  7 boards listed in section 272C.1 and any other licensed
  1  8 profession recognized in this state, a hospital licensed
  1  9 pursuant to chapter 135B, or a health care facility licensed
  1 10 pursuant to chapter 135C, based upon the alleged negligence in
  1 11 the practice of that profession or occupation, any portion of
  1 12 a statement, affirmation, gesture, or conduct expressing
  1 13 sorrow, sympathy, commiseration, condolence, compassion, or a
  1 14 general sense of benevolence that was made by the person to
  1 15 the plaintiff, relative of the plaintiff, or decision maker
  1 16 for the plaintiff that relates to the discomfort, pain,
  1 17 suffering, injury, or death of the plaintiff as a result of an
  1 18 alleged breach of the applicable standard of care is
  1 19 inadmissible as evidence of an admission of liability or as
  1 20 evidence of an admission against interest.

Track the legislative history of HF 2716

Earlier this month, Michigan's House passed similar legislation, HB 4259, by a vote of 99-0.

HB 4259 text | Legislative History of HR 4259

According to The Sorry Works! Coalition, California passed the first "I'm Sorry" legislation in 1991. Since then, 17 other states have passed similar legislation. See table (above right).

Forgiving a Physician
When it comes to medical errors, patients consider some circumstances more forgivable than others. Here is what 958 people had to say about how likely they were to forgive a physician under these circumstances.

Circumstance	Would forgive	Might forgive	Would not forgive
Patient did not tell the physician everything	56%	37%	7%
Patient's condition was unusual and the physician was not familiar with it	25%	59%	16%
An emergency situation	20%	58%	22%
Physician got bad advice from another physician	15%	51%	34%
Physician was too aggressive in the treatment	10%	65%	25%
Physician wasn't the patient's regular physician	10%	57%	33%
Physician was not aggressive enough in the treatment	6%	55%	39%
Physician was tired or distracted	6%	27%	68%
Physician wasn't thorough in the examination or in talking with the patient	3%	22%	76%
Physician did not have, or forgot, important medical knowledge that most physicians have	3%	19%	78%
Physician made a poor decision because he or she was trying to keep costs down	3%	8%	89%
Physician did not follow up or did not monitor test results or treatment	2%	12%	85%
Source: The Sorry Works! Coalition