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Nine states are currently considering so-called “I’m sorry” bills, which would prohibit a physician’s apology to a patient for a negative result in treatment from being used in a suit against the doctor. Another 29 states have already passed similar laws, nearly all of them in the past four years. Defense attorneys representing doctors and hospitals say the legislation is in response to a medical malpractice crisis. It is also part of a movement in the health care industry to encourage doctors to inform patients and apologize, when appropriate, when something goes wrong. Apologies can ward off lawsuits, some claim, and there is a need to ensure that doctors’ words don’t get twisted into admissions of guilt. “Doctors are human beings. Saying that ‘I’m sorry for the outcome’ or ‘I’m sorry that your mother or father died,’ doesn’t mean that the doctor is admitting liability . . . .Oftentimes lawyers will misinterpret the statement and mischaracterize what was said,” said attorney Thomas Taylor of Johns, Flaherty & Collins in La Crosse, Wis. Taylor, a proponent of recent “I’m sorry” legislation in Wisconsin, noted, “I have had cases where, in fact, doctors have been open and honest with patients where their statements have been misinterpreted by a plaintiffs’ lawyer and have been twisted and misused.” Plaintiffs’ lawyers, however, deny that doctors’ apologies are often twisted to prove liability � a tactic they argue wouldn’t hold up in court anyway. “You could never make your case by a doctor simply saying, ‘I’m sorry that happened,’ ” said plaintiffs’ attorney Virginia Buchanan of Levin Papantonio Thomas Mitchell Echsner & Proctor in Pensacola, Fla., who specializes in medical malpractice cases. Buchanan is opposed to making apologies inadmissible in court, mainly because of what goes along with the apology: An explanation of what went wrong. “It’s an unfortunate thing that we’re saying to doctors, ‘You can say you’re sorry and don’t worry, but you won’t be held accountable for it,’ ” she said. “ If a physician says, ‘Oh my gosh, I’m so sorry. I shouldn’t have done that surgery.’ Or, ‘She was too sick to have it. They told me not to do it.’ I would really hate not to be able to use that evidence.” According to the American Medical Association, the nine states currently considering “I’m sorry” legislation are Arkansas, Hawaii, Kansas, Maryland, Massachusetts, Nebraska, Rhode Island, Tennessee and Virginia. The proposed measures are modeled after similar laws that were adopted in recent years and vary from state to state. For example, the law in Colorado covers not only words but also health care professionals’ actions and conduct. It also prohibits outright statements of apology from being used to prove liability. In contrast, the law in Texas is much narrower, making inadmissible only expressions of sympathy and statements conveying “a general sense of benevolence relating to the pain, suffering, or death of an individual involved in an accident.” Five states go further Five states � Florida, Nevada, New Jersey, Pennsylvania and Vermont � have gone a step further by also making it mandatory for hospitals and doctors to inform patients of adverse medical outcomes. Concern over litigation is driving the legislation, said Scott Nichols, a partner at Houston’s Strasburger & Price who represents doctors and health care providers. “The physicians and the hospitals have always been concerned about ‘What do we say to the patients? What does I’m sorry mean? Does it mean I’m admitting negligence, or does it mean I’m sincerely sorry for what’s happened to you?’ ” Nichols said. “ Out of fear of litigation, these laws are on the books.” Nichols said the goal of “I’m sorry” laws is to promote better communication between doctors and patients. “If you improve communication you have satisfied patients and families, which results in less litigation,” Nichols said. Plaintiffs’ attorney Susan Friery, who is also a medical doctor, is not convinced. “I don’t believe there is enough anecdotal evidence to show that apologies actually decrease the number of lawsuits,” said Friery of New York’s Kreindler & Kreindler. In fact, Friery argued, apologies can actually be more helpful to doctors who take the stand and say they’re sorry for an adverse event, and that the outcome was out of their control. “You don’t think a jury is going to hear that and not feel sorry for the doctor?” Friery said. “After all, doctors still win the majority of malpractice cases.”

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