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For many patients, legal action is also the only way to find out what really went wrong. "Most people don't want to sue, but they feel pushed into it," says Doug Wojcieszak, an activist who helped promote what's called the Sorry Works! legislation in Illinois; Doug's brother Jim died in 1998 of multiple heart attacks after a Cincinnati, Ohio, hospital mixed up his records with those of his father, who had been there six months earlier, and misdiagnosed Jim's heart condition.
Only an estimated 2% of negligent events in hospitals result in malpractice cases, so it is entirely possible that if more medical professionals admit errors, the number of potential litigants could skyrocket. David Studdert, a professor at the Harvard School of Public Health, firmly supports increased transparency but nonetheless thinks it will increase litigation, for the simple reason that "now most people don't even understand that they have been injured due to an error."
And not everyone believes shielding doctors after they say sorry is a fair outcome. In many critics' minds, an apology isn't worth much if the person doesn't have to worry about or suffer the consequences. Apology laws, they complain, could just usher in an epidemic of playacting. "To think I should give up my rights so that you can say you're sorry is insulting," says Patti O'Regan, a nurse practitioner in Port Richey, Fla., whose mother died in 1999 from a reaction to pain medication. Many of the states that have passed laws have tried to deal with that issue by providing protection only for general apologies that express sympathy, not for outright admissions of guilt. Colorado's two-year-old statute is a notable exception, covering outright admissions of fault or liability as well--which doesn't sit well with some of the state's malpractice attorneys. One of them, Natalie Brown, says she is waiting for a test case to challenge the law's constitutionality in the Colorado supreme court.
Regardless of the law, it is still no small feat to persuade doctors to give up the defensive mind-set that anything they say will be used against them. No matter how many times doctors, hospital administrators, attorneys and malpractice insurers are told so, they still have a hard time believing that there has yet to be a case in which an apology was used as evidence and made a difference in the outcome, as many supporters of the movement point out. Even if they are sold on the idea, many doctors still have to work on their bedside manner. That's why medical schools like Vanderbilt are increasingly requiring communication classes that include lessons in how best to express regret, and why similar seminars for more seasoned physicians are drawing crowds. At the recent graduation ceremonies for the State University of New York's Downstate Medical Center, its president, John LaRosa, offered some parting advice to the graduates: "'I'm sorry.' Say the words. Mean them. And move on." For now, at least, it's clearly not that simple. --Reported by Massimo Calabresi/ Washington, Elizabeth Coady and Leslie Whitaker/Chicago, Rita Healy/Denver and Michael Peltier/Tallahassee