By Dan Schulte, J.D.
MDA Legal Counsel
From the July 2011 issue of the Journal
Question: Can you explain Michigan’s new "I’m Sorry" law, which was recently signed by Gov. Snyder? Is it true that if I commit malpractice I can now apologize to the patient for my error and the patient cannot sue me? What effect does this new law have on peer review?
Answer: Michigan’s "I’m Sorry" bill was signed into law on April 19, 2011. This law provides that a statement expressing "sympathy, compassion, commiseration, or a general sense of benevolence relating to the pain, suffering, or death of an individual and that is made to that individual or to the individual’s family is inadmissible as evidence of an admission of liability" in a malpractice lawsuit. The statute specifically defines family to include only a spouse, parent, grandparent, stepmother, stepfather, child, adopted child, grandchild, brother, sister, half brother, half sister, father-in-law, or mother-in-law.
Significantly, the law provides that a statement expressing "fault, negligence, or culpable conduct that is part of or made in addition to a statement expressing sympathy, compassion, commiseration, etc., may be admissible in a malpractice lawsuit. The law does not provide immunity from malpractice claims to those who admit malpractice.
The passage of Michigan’s "I’m Sorry" law is a significant development and benefit to Michigan’s dentists and other health care providers. Prior to this law’s passage, dentists and other health care providers lived in fear of making any statement to patients expressing their sympathy, compassion, commiseration, etc., following an unexpected or unfavorable outcome for fear that these statements would be used by plaintiff attorneys in malpractice cases against them as admissions of wrongdoing. The best indicator of how powerful these statements were in the hands of plaintiff attorneys is how the plaintiff’s bar vigorously opposed the passage of Michigan’s "I’m Sorry" law for many years.
Evidence from the 35 other states that have enacted "I’m Sorry" laws shows that it has directly led to fewer and smaller malpractice claims. Enabling dentists and other health care providers to express themselves in this fashion and facilitating this type of communication with patients in the wake of an unexpected or unfavorable outcome has been shown to significantly reduce the likelihood of patients who are disappointed with the results of their treatment filing a malpractice lawsuit. This is the other reason the adoption of Michigan’s "I’m Sorry" law was so vigorously opposed by plaintiff attorneys for years.
Dentists and other health care providers must be careful to understand the parameters of the law and act within those parameters. Statements admitting fault, negligence or other culpable conduct or malpractice may well be admissible in a malpractice lawsuit. The "I’m Sorry" law provides no protection to those who admit to a patient that malpractice occurred, even if the admission is accompanied by an inadmissible statement of sympathy, compassion, commiseration, etc. The "I’m Sorry" law does not provide immunity from malpractice liability in exchange for an admission of malpractice.
Michigan’s "I’m Sorry" law has no direct applicability to the MDA’s peer review system. The law does not apply to a private peer review process. Statements of sympathy, compassion, commiseration, etc., may be admitted in a peer review case. However, when such statements are made following an unintended or unexpected outcome they usually serve to decrease the likelihood of a patient filing a peer review case.
You may also consider alerting and seeking the advice of your malpractice insurer prior to making a statement of sympathy, compassion, commiseration, etc. However, it is hard to imagine the insurer would object to you making the statement since it is inadmissible in any future malpractice case.