CAMLAW: Complementary and Alternative Medicine Law Blog

State-regulated physician apologies soften malpractice blow

Laws in several states mandating disclosure of medical errors protect physicians to apologize and offer expressions of grief without their words being used against them in court.

This all sounds consistent with the emphasis in complementary and alternative (integrative) medicine and holistic health on "healing," as opposed to simply fixing a problem. It is also consistent with notions of 'holistic justice,' which encourage a compassionate, whole-person approach to lawyering.

The Medical Humanities Blog quotes the abstract of a new article on the medical apology laws (Doctors, Apologies, and the Law: An Analysis and Critique of Apology Laws):

"This article analyzes and critiques apology laws, their potential use, and effectiveness, both legally and ethically, in light of the strong professional norms that shape physicians' reaction to medical errors. Physicians are largely reluctant to disclose medical errors to patients, patients' families, and even other physicians. Some states have passed so-called apology laws in order to encourage physicians to disclose medical errors to patients. Apology laws allow defendants to exclude statements of sympathy made after accidents from evidence in a liability lawsuit. This piece examines potential barriers to physicians' disclosure of medical mistakes and demonstrates how the underlying problem may actually be rooted in professional norms - norms that will remain outside the scope of law's influence. The article also considers other legal and policy changes that could help to encourage disclosure."

The Medical Humanities Blog comments:

"Apology laws are picking up steam, especially as medical malpractice insurers have really jumped on board (this after the production of solid evidence demonstrating that apologies reduce the number of lawsuits, reduce the damages awarded by juries, and reduce the amounts agreed to in settlements)."

It's reminiscent of work by physician Ira Byock on dying well. Dr. Byock in "Four Things that Matter Most" argues that four simple statements are a powerful tool for easing suffering of people facing life's end - themselves or a loved one - and preparing to say "Good-bye." These are:

"Please forgive me. I forgive you. Thank you. I love you."

At least malpractice doctors will have the healing benefit of the first phrase - supported by the law.
Law Offices of Michael H. Cohen offers general corporate legal services, litigation consultation, and expertise in health law with a unique focus on alternative, complementary, and integrative medical therapies.

Michael H. Cohen is Principal in Law Offices of Michael H. Cohen and also President of the Institute for Integrative and Energy Medicine (also known as the Institute for Health, Ethics, Law, Policy & Society), a forum for exploration of legal, regulatory, ethical, and health policy issues involved in the judicious integration of complementary and alternative medical therapies (such as acupuncture and traditional oriental medicine, chiropractic, massage therapy, herbal medicine) and conventional clinical care. The most recent published book by Michael H. Cohen on health care law, regulation, ethics and policy pertaining to complementary, alternative and integrative medicine and related fields is Healing at the Borderland of Medicine and Religion. This is the fourth book in a series, following Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives (1998), Beyond Complementary Medicine: Legal and Ethical Perspectives on Health Care and Human Evolution (2000), and Future Medicine: Ethical Dilemmas, Regulatory Challenges, and Therapeutic Pathways to Health Care and Healing in Human Transformation (2003).

Health care and corporate lawyer Michael H. Cohen has also been admitted to the Bar of England and Wales as a Solicitor (non-practicing), adding to Bar membership in four U.S. states.

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