Document Type

Working Paper

Publication Date

4-22-2020

SSRN Discipline

Economics Research Network; Legal Scholarship Network; HEN Subject Matter eJournals; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; Financial Economics Network; Health Economics Network; Health Law eJournals

Abstract

Based on evidence demonstrating that an apology from a wrongdoer to a victim can assuage the victim's anger reduce the likelihood that the victim seeks legal redress and facilitate settlement state legislatures have passed apology laws to encourage the delivery of more apologies Aimed primarily at medical malpractice litigation "” a traditional locus of the tort reform effort "” apology laws render apologies from physicians to patients inadmissible in subsequent legal proceedings In theory privileging apologies will encourage their use and reduce malpractice liability risk as patients assert fewer claims and settle those claims that are asserted brbrHowever if apology laws encourage the delivery of insincere or disingenuous apologies liability risk may increase as such apologies exacerbate rather than assuage patient anger Similarly if apology laws encourage physicians to offer apologies that signal the occurrence of malpractice that otherwise would have gone undiscovered physician liability risk may increase Thus apology laws may increase or decrease medical malpractice liability risk and the nature of their ultimate effect has sparked an intense debate among scholars policymakers and physicians This Article shows that apology laws have the counterintuitive effect of increasing liability risk brbrTo evaluate whether apology laws work as intended I examine a novel dataset of medical malpractice insurance premiums charged to physicians over 19 years This dataset provides a better measure of liability risk than publicly available but incomplete data on malpractice claims used in prior work Across three separate specialties general surgery internal medicine and obstetricsgynecology my analysis demonstrates that apology laws increase the premiums charged to physicians by between 10 and 16 percent These increases translate into substantial additional costs for individual physicians with surgeons internists and obstetricians paying 5000 1700 and 7200 more in annual premiums respectively Based on strong and consistent evidence that apology laws increase not decrease malpractice liability risk I argue that these laws fail to achieve their stated goal Also on the basis of this evidence I propose several alternative legal strategies for legislatures to accomplish their goals br

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