Assessing Legislative Potential to Institute Error Transparency: A State Comparison of Malpractice Claims Rates

Abstract

The prevalence of medical errors and malpractice claims has been attributed to deficits in error reporting and disclosure. Increasingly, states are adopting error reporting and apology laws to reduce these information gaps thereby instituting error-transparent medical cultures. At the same time, doubts have been expressed about the capacity for legislation to influence medical professionals. In order to assess legislative potential to establish error transparency, a cross-sectional research design compared differences in malpractice claim rates among states adopting different legislative approaches. Two one-way analysis of variance tests were performed. The first analysis indicated that there are no significant mean differences in claims rates between states enacting only an apology law, only an error reporting law, both laws, and neither law, F (3,47)=1.13, p=.34. The second analysis indicated that there are no significant mean differences in claims rates between states enacting both laws, either law, and neither law, F (2,48)=1.08, p=.35. The findings show that legislation does not have a significant capacity to regulate malpractice claims rates. This suggests that laws governing error transparency are too remote from the delivery of healthcare services to regulate disclosure behavior and that fundamental changes in our medical culture should be initiated at an organizational level.

Understanding the Barriers to Physician Error Reporting and Disclosure

“…One study demonstrated that apology laws have no significant impact on claims rates, 76 whereas a more recent study found that apology laws reduced the amount of the time needed to settle cases by roughly 20%, and decreased average claims payments for serious injury cases by 14% to 17%. 77 The effectiveness of apology laws is questioned on the merits that legislators are too remote from the delivery of health-care services to significantly impact physicians' behavior.…”

“…77 The effectiveness of apology laws is questioned on the merits that legislators are too remote from the delivery of health-care services to significantly impact physicians' behavior. 76 Another problem is that there are holes in the protections afforded by apology laws such that two thirds of state apology statutes protect only expressions of regret, leaving out any admission of fault or responsibility. Yet another issue is that malpractice lawyers are more inclined to pursue cases where apologies have been made, even if these statements cannot be used as evidence of malpractice behavior.…”

Medical Malpractice: Can We Rescue a Decaying System?

“…27 Health care professionals also fear that, although the specific language or act of disclosure may be protected from an evidentiary standpoint, the very act of communicating will send out an alert that could precipitate a suit that would not have otherwise arisen. Potentially adding to the concerns voiced by practitioners, Perez et al 28 failed to show a comparative decrease in the rate of malpractice claims filed in states that have apology/early disclosure legislation. Despite the aforementioned barriers, self-enactment of early disclosure by health care institutions has shown some promise (even without the support of protective state legislation).…”