Expert commentary: 'Apology bill' shields health care providers' apologies from malpractice suits in Wisconsin

'Apology bill' shields health care providers' apologies from malpractice suits in Wisconsin
'Apology bill' shields health care providers' apologies from malpractice suits in Wisconsin

Drew Kervick,
provides additional commentary on this topic. To read it, click here.

Apologies by health care workers are protected from being used against them in court by a new law enacted in Wisconsin, which is one of more than 35 states to enact such a law. The law, Assembly Bill 120, was signed by Governor Scott Walker on April 8 in Madison.

The intent of the law is to make statements of apology or condolence by health care providers inadmissible as evidence. The legislation could foster more conversations between health care providers and patients/family members when such interaction is needed most.

The bill includes statements, gestures, and conduct that express “apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, or sympathy to a patient or his or her relative or representative.” These type of statements will not risk being admissible in civil action, administrative hearing, disciplinary proceedings, mediation, or arbitration as evidence of liability.

Speaking for the Wisconsin Medical Society, Society President Richard A. Dart, MD, said, “The Society has been a strong proponent of legislation that promotes conversations between a physician and a patient or patient's family following an unexpected or a negative outcome. AB 120 will foster more patient-physician interactions exactly when they're needed most.”

This law protects both apologetic statements and expressions of fault. The Wisconsin Association for Justice (WAJ) explained that if a health care worker admitted fault at the time of the incident to a family member, yet later denied making any statement during a deposition, the initial statement of fault would be inadmissible. The witness could not be asked about the statement. While 36 states have a version of “I am sorry” legislation, most of those laws differ from the Wisconsin version, which includes the words fault, liability, and responsibility. This wording of the law led the WAJ characterize the Wisconsin version as “extreme.”

The bills' supporters stated that it would promote conversations between doctors and patients or their relatives without the risk of such statements being used against them. Also, it would reduce the hesitancy of physicians to have frank or sympathetic conversations with patients or family members following a negative outcome. The law's supporters argued against the weaker versions of the law because they were concerned that it might mislead physicians into thinking they were protected when they really were not, which could be worse than no apology law at all.

Wisconsin recently became the thirty-eighth state (including the District of Columbia) to have an apology law on its books. Apology laws generally restrict the use of a health care provider's expression of empathy or benevolence to the patient as an admission of fault in legal proceedings. The scope and nature of apology laws, however, vary widely by jurisdiction.

While the laws' impact on physicians has garnered much attention, nearly all such laws apply equally to nurses. For instance, twenty-six either specifically apply to nurses or use undefined terms such as “health care providers” or “health care professionals” which, under most interpretations, would include nurses. A handful of other states have less specialized rules that protect anyone who expresses sympathy or benevolence to an injured person, either in medical malpractice cases or more broadly in any civil litigation.

Among the states that have adopted apology laws, only Oregon and Pennsylvania protect nurses solely to the extent that the nurse is acting as an employee or an agent of a physician or a health care institution. If you are a nurse in a jurisdiction that has adopted an apology law, we recommend becoming familiar with the benefits, nuances, and limits of your state's law.

Drew Kervick is an associate practicing in health care, as well as other areas, with Dunkiel Saunders Elliott Raubvogel & Hand, a law practice based in Burlington, Vermont. In his health care practice, Drew advises health care providers including physicians and physician practices, hospitals, health clinics, residential care, assisted living and nursing facilities, and home health and hospice providers, with respect to transactional matters and regulatory compliance.

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