Some malpractice-reform advocates say an apology can help doctors avoid getting sued, especially when combined with an upfront settlement offer. It’s all part of a new movement called “Sorry Works!” or “Say-You’re-Sorry”. In recent years, about fourteen states have passed laws allowing physicians and hospitals to apologize to patients for making mistakes without the fear of such apologies being used as admissions of guilt in subsequent litigation.

States, including Illinois, North Carolina, Oregon, Texas and Arizona, have done so to try to get some control over the medical malpractice crisis now spreading nationwide, which has forced many physicians to move or cease practicing entirely. The rationale behind this movement is that anger is often the motivator for many lawsuits. The physician who expresses empathy and an apology to his patients along with open communication about medical errors when they occur will reduce the number of medical malpractice lawsuits and lower settlement costs.

Louisiana has recently passed this type of legislation. On June 16, 2005, Governor Blanco signed Act 63, making empathetic statements or statements expressing or conveying apology, regret, grief, sympathy or condolence to patients or their families by health care providers inadmissible in a medical malpractice action. Act 63, however, does not make inadmissible statements of fault which are part of, or in addition to, such communication. The new law took effect on August 15, 2005. While proponents of Act 63 hope that it will promote more open communication between physicians and patients, differentiating statements of fault from statements of apology or regret may be sorted out through the court system and may deter the willingness of physicians and other health care providers from saying anything.

In addition to the inadmissibility of empathetic statements, Act 63 contains specific provisions for medical professional liability insurers, the office of risk management and the Patient’s Compensation Fund, to use professional liability claims information to conduct studies, review data, and identify the underlying causes of unanticipated, adverse patient outcomes. Such information can be used to promote practice changes for the purpose of improving patient health care quality and reducing professional liability claims. Act 63 deems this information confidential, thus it is not subject to discovery nor, can it be admitted into evidence in any medical malpractice action. Moreover, no one involved in creating, generating, compiling or analyzing the information can be forced to testify in any medical review panel proceeding, arbitration proceeding or civil action.

The goal of Act 63 is to reduce the number of medical errors and medical malpractice lawsuits both by using information and data to prevent similar occurrences and by affording families with an apology from their medical providers when such events occur. Whether the new legislation will be successful or not is still an open question, but similar programs adopted at the Veterans Affairs Hospital in Lexington, Ky. and the University of Michigan Health System have seen significant decreases in their liability costs and the average number of lawsuits filed since adopting programs that promote apologies by their physicians. Act 63 now provides the legal protection that many physicians were seeking.