Document Type

Working Paper

Publication Date

8-21-2017

SSRN Discipline

PSN Subject Matter eJournals; Chemistry Research Network; Political Economy - Comparative eJournals; Experimental & Empirical Studies eJournals; LSN Subject Matter eJournals; ERN Subject Matter eJournals; Financial Economics Network; Health Economics Network; Economics Research Network; Legal Scholarship Network; HEN Subject Matter eJournals; Social Insurance Research Network; Law & Society eJournals; Law & Society: Private Law eJournals; Political Science Network; Health Law eJournals

Abstract

As part of the effort to contain the size and frequency of medical malpractice claims many states have adopted apology laws These laws make apologies from physicians to patients inadmissible in any subsequent court proceedings The basic rationale behind apology laws is that meritless malpractice claims are less likely to be filed when a physician can apologize to his or her patient without risking those statements being used in court Through the use of a unique dataset this article corrects several misunderstandings concerning this new generation of tort reformFirst it shows that while apology laws may reduce the frequency and size of malpractice claims as intended they may also have a perverse effect on patients' propensity to litigate If a physician knows more about whether a patient's injury was caused by malpractice than the patient an apology could alert the patient to that malpractice and encourage the filing of a claimSecond the article provides the first empirical analysis of the effect of apology laws on clinical outcomes investigating their ability to reduce the practice of defensive medicine Examining over 16 million hospital stays for heart attack patients the article finds no evidence that apology laws reduce defensive medicine Apology laws do not decrease the intensity of treatment received by patients In fact they increase the medical resources used to treat heart attack patients consistent with an increase in defensive medicine Based on these empirical findings the article concludes that apology laws are not effective tort reforms and that states should look to other policies if they wish to achieve the goals of apology laws

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