Hawaii doctors study no-fault apologies
Hawaii legal and medical leaders would like to see a state law encouraging doctors and hospital staff to apologize for medical errors without increasing the risk of a lawsuit.
"If doctors can apologize and try to make things right, then litigation is avoided," said Richard Turbin, a personal injury lawyer who heads the Hawaii State Bar Association.
States such as North Carolina, Florida, Missouri, Oregon, Illinois, Colorado and Arizona have passed laws in recent years to encourage apologies for medical mistakes by making them inadmissible in civil court.
"It's an opportunity for a doctor to express regrets without admitting malpractice guilt," said Dr. Scott McCaffrey, Honolulu County Medical Society president, who is working with Turbin on an apology proposal.
"It's a wonderful concept," McCaffrey said. "It works quite well in states that do have that kind of law."
An apology law is a way for medical providers to say they are sorry about an error "without having it blasted at them in trial," Turbin said.
"That's all a lot of people want. They know, especially in emergency room settings, that bad things can happen, that people are acting under a lot of pressure and things are going quickly.
"A lot of times, that's all people want is 'I'm sorry.' If they don't get it, they get mad."
Turbin said he and McCaffrey want to make sure the idea is acceptable to broad sections of the legal and medical professions and propose it as a venture of the Medical Society and Bar Association.
They plan to form a committee of lawyers and doctors to look at examples of laws in other states and work on proposed legislation.
"If they believe it's appropriate, the legal and medical profession jointly can propose legislation next session," Turbin said.
Rules of evidence would be modified to allow the apology as an out-of-court statement, he said.
Supporters of apology laws feel they could ease adversarial relationships between doctors and patients and make malpractice victims more willing to negotiate a settlement, according to a Time Magazine report Aug. 15.
Where legislation has been enacted on the mainland, "everyone is quite happy," McCaffrey said. "It has the potential to bring (malpractice) costs down."
Rod Maile, senior hearings officer with the Hawaii Medical Claim Conciliation Panel, said his department will work with the Bar Association and Medical Society on proposed legislation.
Putting the law under the category of evidence that can be admitted in court "is one way of saying it's OK to have these kinds of discussions and not have the consequences of having it construed as admission," Maile said.
State Insurance Commissioner J.P. Schmidt said a number of states are trying the apology law to address medical malpractice costs by trying to work out a process where there is less litigation.
Whether an apology law would have a significant impact on medical malpractice cases and insurance is questionable, Schmidt said.
But the insurance division supports constructive efforts to seek solutions to the medical malpractice problem "because it is a serious problem that is having a very negative impact on our community," he added.