There is much discussion now—in Congress, state legislatures, and the media—about how to deal with escalating health care costs. Some people argue that health costs are up because malpractice insurance rates are high. They want a cap on the amount juries or judges can award in medical malpractice cases, particularly for punitive damages. Some groups are advocating a less drastic approach, an approach that will encourage communication and settlement.

The theory is that people often bring medical malpractice cases out of anger at what they see as callousness and a lack of care on the part of facilities and health care providers. Juries award punitive damages out of the same anger. Health care providers are afraid to talk about what happened for fear what they say will be used against them in court. Some states have concluded that this situation will be improved if health care providers can apologize for what happened and express sorrow and grief, with a guarantee that those statements won’t be used in court. Legislators hope this will decrease the number of medical malpractice lawsuits and produce lower verdicts for punitive damages.

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Nineteen states have passed these laws, called apology laws. They are:

• Arizona
• California
• Colorado
• Florida
• Georgia
• Hawaii
• Idaho
• Illinois
• Maryland
• Massachusetts
• Montana
• North Carolina
• Ohio
• Oklahoma
• Oregon
• Texas
• Virginia
• Washington
• West Virginia

A Veterans Administration (VA) hospital in Lexington, Kentucky decided to take this idea one step further. In 1987 the hospital began to admit to errors and start negotiations with patients and their families soon after the malpractice had occurred. The results were surprising. During the following 16 years, the hospital paid an average of $16,000 per case as compared with average settlements of $98,000–$450,000 in more adversarial situations. Based on this success, other hospitals adopted the model. The University of Michigan Health System dropped its legal expenses from $3 million to $1 million a year. A malpractice insurer, COPIC Insurance Company of Denver, Colorado, is setting up a similar program.

The upside of this practice for injured patients and their families is that they don’t have to go through all the hassles of malpractice litigation and can get some money fairly quickly. The downside is that the amounts of money being paid out are not large enough to compensate many people for their losses, which will have other economic consequences. Some patients have been disabled and will need special care for the rest of their lives. If the settlement doesn’t cover the expenses, someone will have to pay. Minor children have lost their parents and their economic support. Someone will have to pay for their living costs and education. Another concern, and perhaps a more serious one, is that if the costs of malpractice are too low, facility administrators may not be motivated to make costly improvements that could save lives.

To learn more about VA medical malpractice claims, see Veterans Medical Malpractice Claims: What You Should Know. For more information about the declining standard of care in VA hospitals, see Veterans Administration Hospitals: Do They Measure Up to an Appropriate Standard of Care?

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