Physicians would be Protected under Proposed Law

The Detroit Free Press

Should doctors apologize to their patients if they or their hospitals screw up?

"I'm sorry" legislation pending in Lansing would let physicians express regrets without fear that the words would be used against them in court. Michigan is one of only 15 states without extra legal protection for doctors who want to apologize to a patient or family.

The bill's sponsor, Rep. Jim Marleau, R-Lake Orion, expects the proposal, which has been introduced before, has a better chance of passage this time because it coincides with a focus in federal health reforms to rein in health costs.

He points to a physician apology policy at the University of Michigan, which has resulted in 40% fewer lawsuits and cut legal costs in half since the approach began in 2004.

Michigan physicians currently are warned to "tread very softly" with apologies, said Dr. Daniel Michael, president of the Michigan State Medical Society and a Beaumont Hospital, Royal Oak, neurosurgeon.

Dr. Abelkader Hawasli, a St. John Hospital & Medical Center surgeon, said he believes doctors should apologize to patients, and he has over the years, he said. "No physician wants to harm anyone. Doctors aren't Gods. We're just human beings."

Apologies put state's doctors at risk

"I'm sorry."

"This shouldn't have happened."

"Please accept my condolences for your loss."

Apologies like these from doctors to patients and families may happen more often in Michigan if so-called "I'm Sorry" legislation pending in Lansing collects more support this time around.

Marleau reintroduced a proposal in late April to let doctors apologize to a patient or family without having to worry about having the comments, unless they were an admission of negligence, used against them in court.

"Families want closure, and sometimes they don't understand that there are two attorneys trying to keep both parties as far apart as possible," Marleau said.

Dr. Joe Schwarz, a Battle Creek ear-nose-and-throat surgeon, said he has "never had blowback" in court from being candid with people. But he added: "You have to know with whom you can be candid and with whom you can't." When he apologies, he said, he might say, "It may have gone better had I done something else, but I made a decision as best as I can with the information I had on hand and I'm sorry this happened."

The legislation, pending before the House Judiciary committee, has been introduced several times since 2003. But the bills got watered down, then failed to attract support, according to Colin Ford, director of state and federal government relations for the Michigan State Medical Society, which has supported the bills

Marleau said he believes growing national efforts to rein in health costs will help push through the proposal this time around, because heading off lawsuits saves money.

Much like real estate, where everything is "location, location, in Lansing, it's timing, timing," Marleau said last week.

Marleau points to the University of Michigan, which began a physician disclosure and apology policy in 2004, as evidence that apologies work. On the patient safety portion of its Web site, U-M officials explain why the policy was created: "We believe that court should be the last resort, not the first, when a medical mishap, complication or near-miss occurs."

U-M has seen a 40% reduction in the number of new lawsuits filed by patients and has cut its health care litigation costs in half, its top attorney Richard Boothman said in a 2009 journal article explaining the school's approach to medical errors. Once a person or family's need for information is satisfied, and if they feel an institution has responded with improvements so the problem doesn't occur again, they are less likely to sue, Boothman said.

The state's trial lawyers association, the Michigan Association for Justice, has taken no position on the legislation, but spokesman Jesse Green said he considers any law worthless without reforms to make insurance companies change language in physician malpractice policies that prohibit apologies.

The State Bar of Michigan typically doesn't take legislative stands, but some of its top leaders support doctor apologies. "To me, it's the right thing to do," said José Brown, a Flint attorney who defends doctors in malpractice cases and who chairs the bar association's negligence section.

He compares a physician apology with a statement a homeowner might make if a dog bit a visitor or the person tripped on their property. Such statements go a long way to help a physician who might have to face a jury, Brown said. "I tell my clients if they are sitting in front of a jury, they would want (the jury) to know they had gone to the family and apologized," he said.

In Maryland, MedChi, the state's largest physician organization, sought changes this year to its 2005 physician apology law to provide stronger prohibitions against using doctors' statements in court.

Marleau's bill, like Maryland's, would allow a doctor's admission of fault to be used in court for cases for true negligence, but Ford, of the Michigan medical society, said most states with physician apology laws have not had problems with doctors' statements routinely being used against them.