Providence, R.I. – The problem was obvious to anyone who looked at the middle-aged woman: After surgery to correct a drooping eyelid, her eyelid was too high. After a second operation, it was too low.
Dr. Michael Migliori had the delicate task of telling the woman she needed a third operation. He began with two words that could make a defense attorney’s head explode: “I’m sorry.”
“In this state,” Migliori said in an interview, “that can be used essentially as an admission of guilt” if a patient files a malpractice suit.
Lawmakers in Rhode Island and eight other states are now considering bills that would allow physicians to apologize when things go wrong without having to fear that their words will be used against them in court.
At least 27 other states, including Colorado, already have passed similar laws, nearly all of them in the past four years, according to the American Medical Association.
The wave of “I’m sorry” laws is part of a movement in the medical industry to encourage doctors to promptly and fully inform patients of errors and, when warranted, to apologize. Some hospitals say apologies help defuse patient anger and stave off lawsuits.
At the same time, many doctors are trained or warned never to admit errors, in case a patient sues.
Migliori, an ophthalmic plastic surgeon and lobbyist for the Rhode Island Medical Society, said his patient’s drooping eyelid was fixed in the third operation, and he wasn’t sued.
The surgeon said that he realizes an apology could come back to haunt him but that he considers saying “I’m sorry” essential to preserving the bond of trust between doctor and patient.
Otherwise, “patients think I’m hiding something, I must have done something wrong,” he said.
Apology laws vary by state. In Arizona and 14 other states, doctors can safely apologize to or commiserate with patients or their families about an undesirable or unexpected outcome, according to the AMA, while a law in Vermont exempts only oral statements of regret or apology, not written ones.
Trial lawyers call Rhode Island’s bill unfair and overly broad because it could bar some internal hospital reports on medical errors from becoming evidence.
Boston-based ProMutual Group, which insures 18,000 doctors, dentists and health-care facilities in the Northeast, warns its clients against apologies that admit guilt – even in states that have laws protecting doctors who say they are sorry. It distributes a tip sheet cautioning doctors against uttering the words “error,” “mistake,” “fault” or “negligence.”
