The Wisconsin Healthcare Provider Apology Law
Effective April 10, 2014, Wisconsin joined the majority of states in enacting legislation allowing healthcare providers to apologize to patients and families without fear of having the apology used in court should future litigation arise. These laws are known as “‘I’m sorry’ laws” or apology laws. Currently, thirty-seven states have legislated some version of an “I’m sorry” law.
Wisconsin’s apology law, Wis. Stat. § 904.14, was supported by both the Wisconsin Medical Society and the Wisconsin Hospital Association. Under the Wisconsin law, healthcare providers are allowed to apologize to patients and their family members without having the apology be admitted in legal proceedings as a party admission.
Comparison to Other States’ Apology Laws
Wisconsin’s law sets forth very few restrictions in comparison to similar laws in other states. Nationwide, the scope of protection provided by apology laws varies. Of the four states surrounding Wisconsin, only Michigan and Iowa have apology laws. Minnesota has not enacted an apology law, and Illinois’s apology law, originally enacted in 2005, was found unconstitutional by the Illinois Supreme Court inLebron v. Gottlieb Memorial Hospital.1 The Illinois apology law was included as a subsection of a larger medical liability reform statute, which also placed caps on non-economic damages. The Lebron decision focused primarily on the damage caps, and an inseverability provision voided the statute in its entirety.2Following the Lebron decision, there is no protection offered in Illinois for healthcare provider apologies to patients. Under Michigan’s apology law, Mich. Comp. Laws § 600.2155, a statement, writing, or action by a healthcare provider that expresses “sympathy, compassion, commiseration, or a general sense of benevolence relating to the pain, suffering, or death of an individual and that is made to that individual or to the individual’s family is inadmissible as evidence of an admission of liability in an action for medical malpractice.” However, Michigan’s apology law does not apply to a statement of “fault, negligence, or culpable conduct that is part of or made in addition to a statement, writing, or action.”3
Iowa’s apology law was enacted in 2007 and provides very broad protection, similar to Wis. Stat. § 904.14. Iowa Code § 622.31 does not limit protection for statements of fault or liability as in Michigan, and also prevents responses from the plaintiff and family following an apology from being admitted into evidence.
Overview of the Wisconsin Healthcare Provider Apology Law
For an apology to be excluded as evidence under Wisconsin’s apology law, two requirements must be met. First, the apology must occur before the commencement of a civil action, administrative hearing, disciplinary proceeding, mediation, or arbitration.4 Second, the healthcare provider’s words or conduct must express “apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, or sympathy to a patient or his or her relative or representative.”5 The apology may be in the form of “a statement, a gesture, or conduct” and does limit the specific means of the apology chosen by the provider.6 Importantly, but for the apology law, the Wisconsin Rules of Evidence would treat apologies as party admissions, and thus admissible as evidence at trial.
Does an Apology Really Assist in Avoiding Litigation?
One of the rationales for the apology law is that allowing medical providers to apologize without fear of liability for doing so may reduce the likelihood of medical malpractice lawsuits. Even prior to the enactment of apology laws, several healthcare systems throughout the country had established policies for apologizing to patients when provider errors occurred. According to one study, an explanation and apology following a provider error would have caused 37% of respondents not to file a civil suit.7 The same study found that patients feel the need to hire an advocate when they have not received adequate answers to questions about their outcomes, when they sense the absence of accountability for what happened to them, and/or when they worry the same mistake could be made in another patient’s care.8
In 2010, the relationship between apology laws and the frequency of and settlement payment amounts for medical malpractice claims was analyzed by researchers.10 Medical malpractice payment data from 1991 through 2009 was analyzed and compared between states with apology laws and those without such laws. The statistical analysis showed that in apology law states, the apology laws did not have a significant impact on the average settlement payments for minor injuries.11 However, there was a correlation between having apology laws and a decrease in average settlement payments for cases involving significant and permanent injuries. Furthermore, the length of time to resolve medical malpractice claims was reduced in apology law states.12 Although the states’ various apology laws differed in the amount of content covered under each of their respective laws, there was no difference found regarding the frequency of the filing of malpractice claims and the total compensation payout between states with full apology laws and those with only partial apology laws.13
At the same time, there may be potential downsides to enacting apology policies and procedures. For example, because an apology law reduces the cost of the apology, it is arguable that the apology becomes less effective, which in turn makes the possibility of a lawsuit more likely.14 Said differently, if there is less risk or no risk to apologizing because of an apology law, apologies might be given more gratuitously, and have less meaning as a result. Further, patients may be induced to litigate more frequently if apologies better inform them as to the extent and cause of their injuries.15 While it may be difficult to assess all of these factors, they should nonetheless be considered as part of any policy or procedure addressing patient apologies.
Who is Covered?
Wisconsin’s healthcare provider apology law covers healthcare providers as defined under Wis. Stat. § 146.38(1)(b). This includes:
- Licensed physicians, physician assistants, perfusionists, or respiratory care practitioners
- Physical therapists or physical therapist assistants
- Athletic trainers
- Occupational therapists or occupational therapist assistants
- Social workers, marriage or family therapists, professional certified counselors
- Speech-language pathologists or licensed audiologists or speech and language pathologists licensed by the department of public instruction
- Massage therapists or body therapists
- A partnership consisting of healthcare providers
- A corporation or LLC of any providers listed above that provides healthcare services
- A hospice, inpatient care facility, community based residential facility, rural medical center, emergency medical technician
- Certified First Responders16
Wisconsin Stat. § 904.14 also expands upon the above list of healthcare providers as defined in Wis. Stat. § 146.38(1)(b), and includes:
- Ambulatory surgery center
- Adult family home
- Residential care apartment complex that is certified or registered by the department of health services
What is Covered?
The level of covered content in the apology varies from state to state. Some states only allow the actual apology to be excluded from evidence; therefore, admissions of fault may be admissible as a party admission at trial. In 2012, the American Medical Association Advocacy Resource Center produced a reference chart summarizing apology laws from every state. Although dated, the chart provides a good starting point for attorneys with clients in other states.17
In Wisconsin, the apology law provides broad leeway for healthcare providers to apologize without having to worry about controlling the content or means of the apology. The law does not define specific requirements that are imposed on the healthcare provider. Both verbal and nonverbal acts on the part of the provider are protected by the law. For example, if the provider wishes to hug the affected patient or a family member, they may do so without fear of incurring liability as this would be interpreted as either a gesture or conduct of sympathy under Wis. Stat. § 904.14(2).
When Must the Apology Occur?
If the decision to apologize is made, it must be given prior to the commencement of a civil action, administrative hearing, disciplinary proceeding, mediation, or arbitration.18 Commencement of a state civil action occurs when a complaint is filed with the clerk of the circuit court and a federal action when filed with the local district court.19 Medical mediation panels are mandatory under Wis. Stat. § 655.44 and must be filed prior to the commencement of an action or within 15 days of the filing of a complaint under Wis. Stat. § 655.445. Therefore, it is prudent that, when a healthcare provider chooses to make an apology, it be conducted as close to the time of injury as possible. If there is delay and the patient or their family has already submitted a request for mediation under § 655.44 or initiated suit under § 655.445, the apology may be admissible in legal proceedings.
To Whom Can the Apology be Given?
Establishing the relationship of the patient to those present when an apology is given is critical. An apology may be made to the patient or to the patient’s relatives. Relatives are defined under Wis. Stat. § 106.50(1m)(q) to include:
- Parents and step-parents
- Grandparents, step-grandparents, and great-grandparents
- Brothers, sisters, step-brothers, step-sisters, half-brothers, and half-sisters
- Children and step-children
- Grandchildren, step-grandchildren, and great-grandchildren
- First cousins and second cousins
- Nephews and nieces
- Uncles and aunts
- Or any other person related by blood, marriage, or adoption
There is a potential argument to be made that the apology is admissible if it is given while in the presence of or to an individual not specifically included in the statute. There will also likely be interplay between this law and other laws concerning the rights and privacy of the patient (e.g., HIPAA) which may exclude listed individuals from being present for the apology.
Wisconsin’s apology law provides healthcare providers the opportunity to apologize to patients without fear of their statements being used against them as party admissions if litigation should arise. The law is broad and does not place restrictions on the means or content of the chosen apology, and allows healthcare providers to be more open and expressive without feeling the need to respond to patient/family questions with canned and scripted answers. Many factors affect the decision to ultimately file a medical malpractice claim, but full disclosure and an apology following a healthcare provider error has been shown to reduce the impact of medical malpractice litigation.
Terri L. Weber is a partner in the law firm of Nash, Spindler, Grimstad & McCracken, LLP, practicing in insurance defense, including medical malpractice representation of hospitals, nurses, and physicians, and other general civil litigation. A second career attorney, Ms. Weber was a registered nurse for 15 years prior to graduating from law school in 1999. As a registered nurse, Ms. Weber practiced primarily in the areas of intensive care and trauma. Professionally, Ms. Weber is a member of DRI, the Wisconsin Defense Counsel, and Wisconsin Society of Healthcare Risk Management. She has previously sat on the Professional Responsibility section of the State Bar of Wisconsin (2005-2010) and has been a member of the American Association of Nurse Attorneys. Personally, her interests have varied and she has sat on the board for the American Red Cross – Manitowoc/Calumet County and Roads for Freedom, a private non-profit group focused on disabled housing in Calumet County.
Andrew Stevens is an Associate Attorney at Nash, Spindler, Grimstad and McCracken, LLP. Andrew joined the firm in 2014 and practices in the areas of litigation and insurance defense. Prior to joining the firm, Andrew worked as a police officer for eleven years with the Wayne County Sheriff’s Department in Detroit, Michigan. Andrew is licensed to practice law in Wisconsin and Michigan.
1 930 N.E.2d 895 (Ill. 2010).
2 Id. at 914.
3 Mich. Comp. Laws § 600.2155(2).
4 Wis. Stat. § 904.14(2)(a).
5 Wis. Stat. § 904.14(2)(b).
6 Wis. Stat. § 904.14(2).
7 Richard C. Boothman, et. al., A Better Approach to Medical Malpractice Claims? The University of Michigan Experience, 2 J. Health & Life Sci. L. 125, 133 (2009) (citing Charles Vincent, et al., Why Do People Sue Doctors? A Study of Patients and Relatives Taking Legal Action, 343 Lancet 1609-13 (1994)).
9 Elaine Liu and Benjamin Ho, Does Sorry Work? The Impact of Apology Laws on Medical Malpractice, Johnson School Research Paper Series, No. 04-2011 (October 2010).
16 As defined under Wis. Stat. § 256.01, which also includes police and fire departments who certify their respective officers and fireman with EMT training. While it is unknown whether police and fire departments were thought of by the Wisconsin Legislature when drafting the law, an argument could be made to extend apologies to them based upon the lack of limiting language within Wis. Stat. § 904.14.
17 Available at: http://www.legis.state.ak.us/basis/get_documents.asp?session=28&docid=23660.
18 Wis. Stat. § 904.14(2)(a).
19 Wis. Stat. § 801.02 and Fed. R. Civ. P. 3.