Stephen Raper, ‘No Role for Apology: Remedial Work and the Problem of Medical Injury’

Many commentators endorse apologizing after injuring someone in the course of medical treatment. The sentiment has been stated in its most elemental form: “Say you’re sorry when you hurt somebody.” However, an apology has special linguistic weight: it is an admission of regret, remorse and responsibility. As such, apologies may prove a case of medical negligence. In an attempt to decrease the potential harms of saying “I’m sorry” in the healthcare setting, some state legislatures have enacted statutes intended to protect physicians. The thesis of this Article is that apologies should not be issued in the medical setting, and that apology laws are misguided. These laws work against the important social policy goal of improving patient safety by discouraging healthcare workers from openly acknowledging and correcting systematic errors and deficiencies in human performance. Apology laws are also misguided because they bolster the failed litigation regime of deterrence and corrective justice of medical injuries. Lastly, these laws may require individual physicians to apologize for the actions (or inactions) of a complex healthcare delivery system over which physicians have little authority or control, rendering the apologies contrived and insincere.

Modem health care is a complex enterprise with a large and varied cast. A non-exhaustive dramatis personae would include state and national accreditation bodies, federal and third-party payers, hospital-wide committees, administrators, credentialed general care and specialty physicians, advanced practitioners, nurses, and support personnel. When there is a medical injury ascribed to error, many – indeed most – of the above-mentioned groups often play roles.
Recommended Citation

Raper, Stephen E. (2011) “No Role for Apology: Remedial Work and the Problem of Medical Injury“, Yale Journal of Health Policy, Law, and Ethics: Vol. 11: Iss. 2, Article 2.

First posted 2013-03-09 09:31:52

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