Voluntary Disclosure and Apology Protection

Physicians are ethically bound by an American Medical Association mandate to disclose adverse medical incidents. Counsel typically warn physicians about the risks of discussing adverse incidents with patients or their families because of malpractice risks. However, since 2005, a voluntary organization, The Sorry Works! Coalition (www.sorryworks.net), has advocated for disclosure, apology (when appropriate) and up-front compensation (also when appropriate) after adverse medical events. Evidence shows this builds patient trust and communication, reducing malpractice expense. Disclosure and apology is institutionalized at all Veterans Administration hospitals. The Lexington VA hospital is credited with initiating the VA program after its pilot program reduced average settlements over 80 percent. A similar program at the University of Michigan cut the number of lawsuits in half and also significantly reduced defense cost for cases that were filed.

Twenty-nine states have passed legislation excluding expressions of sympathy as proof of liability. Five states have made disclosure of adverse incidents mandatory and are included in the list of states that exclude such notification as evidence at trial. Protection typically covers (in the words of Florida’s statute) voluntary disclosure of and apology for “adverse incidents that result in serious harm to the patient,” and is separate from the peer review or other disclosure process. In at least one state, Colorado, the largest medical malpractice insurer is reducing insurance rates for physicians who participate in a disclosure program. General counsel at health care providers in states that afford voluntary disclosure and apology protection should consider this option as an effective risk management tool to reduce both litigation and insurance expense.