Indiana Malpractice Bill May Take Sting from Docs Saying ‘I’m Sorry’

January 9, 2006

Usually saying “I’m sorry” means good things for the person that says it. However when a physician says “I’m sorry,” it could mean big trouble down the road in the court system.

With this premise in mind, a new bill is being considered in the Indiana House Judiciary Committee. The proposed bill’s language says that defendants in lawsuits could not be punished for apologizing to plaintiffs before a trial. Other statements of sympathy, such as those expressing condolences or support, also would be blocked from liability, according to the account in the Indianapolis Star.

The bill would apply to practically all lawsuits that allege harm, ranging from car accidents to medical malpractice. Currently, Indiana law allows communications of sympathy to be used as evidence.

The Judiciary Committee discussed the bill for the first time at a
hearing recently and Rep. Ralph M. Foley, R-Martinsville, the committee’s chairman, said he introduced the legislation after reading news reports that said physicians were often afraid to apologize to patients for fear of a lawsuit.

Sen. Luke Kenley, R-Noblesville, is sponsoring a parallel bill in
the Senate. Seventeen other states have similar laws on the books.

Foley lamented in testimony before the House that despite teaching our children civilty, when we have an incident our insurance adjusters tell us that we cannot offer the most basic expressions of sympathy without fear of liability.

The Judiciary Committee referred the proposal to a four-member
subcommittee to work out the language of the bill. Several committee members said they were concerned that the proposal was too broad, because it also would bar apologies that admit fault from being used as evidence.

In 2004, Indiana doctors paid a record $104 million to the Indiana
Patient’s Compensation Fund, a voluntary malpractice insurance program administered by the state. The same year, patients filed 1,255 complaints against the fund, another record, the Indianapolis Star said.

But malpractice judgments have decreased in recent years, from a record $99.7 million in 2000 to $85.4 million in 2004, according to the
fund’s biannual report. Plaintiffs who sue through the fund are
nearly three times more likely to get a ruling of “no malpractice”
than one that puts the doctor at fault, according to the report.

Supporters of the legislation believe that an apology could be key to avoiding a bitter lawsuit. And, a study by Southern Methodist University law Professor Daniel Shuman supports the idea that the likelihood of an injured party suing had less to do with the severity of the injury than with the actions of the doctor.

The Indiana Trial Lawyers don’t agree, saying the legislative branch should not be involved in what is a matter for the courts to decide and that creating a law that assumes “one size fits all” is not the right approach to this concern.

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