Law Professor: Medical Apology Programs Might Manipulate Patients

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The idea that a simple "I'm sorry" could help reduce the number of medical malpractice lawsuits is gaining a foothold in Massachusetts. Seven hospitals in the state recently adopted an apology program, and the governor's health care cost control bill includes this approach, too.

The thinking behind it is that when doctors apologize for making mistakes, patients are less likely to sue — and everyone benefits. But Gabriel Teninbaum, an associate professor at Suffolk University Law School, has a contrarian view. He spoke with WBUR's All Things Considered host Sacha Pfeiffer.

Sacha Pfeiffer: Gabriel, you say that this idea of a doctor apologizing, and a patient even being offered financial compensation for a doctor's medical mistake, doesn't really serve patients. Why not? 

Gabriel Teninbaum: My concern is that a patient, after suffering a terrible injury as a result of an accident, will confuse a communication they have with their doctor as being intended to heal, when in fact it's intended to keep them from pursuing money damages. The patient would get a call from a risk manager — who's a lawyer, typically, who works for an insurance company or for a hospital -- inviting them to talk about their injury. Now, under the Massachusetts plan, what that conversation would probably entail is a disclosure of what happened — that it was a medical error — an apology, and an offer of some sort of compensation. My concern is that patients will be manipulated into thinking that the apology and offer reflect the true value of the claim, the true value of the amount of money that they'd need to go on in their life after this injury. 

In fact, there is a program in Michigan that has done this, and it has found that patients who receive apologies tend, on average, to receive less money than patients did before the program was put in place. That's generally viewed as a negative for the patients.

But could it be that once you remove the anger and maybe the sense of vengefulness on the patient's part, that that actually was realistically what the patient should have received financially?

Yeah, I think it's a possibility that that's a true statement. Now, if a patient, after hearing the apology and getting an offer, decides -- once they've understood the full scope of what it is that they'll need to go on in life and what they'd be legally entitled to in terms of compensation -- not to pursue damages, they say, 'The apology was enough, I don't want this money or I don't need this money,' I think that's a perfectly appropriate outcome.

You make clear that you're not opposed to doctors apologizing. But you say that patients who are apologized to still need to be educated about their rights and future needs. Is that a fair summary of your view?

Absolutely. And there's all sorts of research, psychological and beyond, that suggests that apologies are a really good thing on their face. They're good for doctors, who of course need to continue to treat patients and need to feel good about what they do. And they're good for patients and their ability to heal from the injuries. I don't in any way want to suggest that apologies are a bad thing.

As a law professor, you come from this, naturally, from a legal perspective, and you are skeptical about these apology programs. But is there any scenario in which you see them working and being something that you view as positive, perhaps with a few tweaks?

Oh, absolutely. I think this can be a very, very positive thing. Here's all I'd have happen: as part of this process at the very, very outset, when a patient is having this conversation with his or her doctor and risk manager, there would be a statement that, 'Look, we have potentially different and adverse interests in this because there's a legal matter to deal with — the medical malpractice issue — and you should seek legal counsel.' And by doing that, what you're providing the patient with is empowerment so that they can go out and get educated on what their rights are. And from there, there can be a fuller transparent conversation where everyone is on the same page about how to resolve the matter.

This program aired on May 1, 2012.


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