Analysis and Critique of Apology Laws

This is a follow-up to the Library Boy post of November 19, 2006 entitled Apology Acts - Saying 'Sorry' Without Incurring Liability.

That post discussed Canadian and American statutes that "allow individuals and corporations to offer a sincere apology as part of their dispute resolution process without fear of legal liability".

Marlynn Wei of the Yale Law School has just published an article in the Journal of Health Law, 2007 entitled Doctors, Apologies, and the Law: An Analysis and Critique of Apology Laws (available for download via the Social Science Research Network):

"This article analyzes and critiques apology laws, their potential use, and effectiveness, both legally and ethically, in light of the strong professional norms that shape physicians' reaction to medical errors. Physicians are largely reluctant to disclose medical errors to patients, patients' families, and even other physicians. Some [American] states have passed so-called apology laws in order to encourage physicians to disclose medical errors to patients. Apology laws allow defendants to exclude statements of sympathy made after accidents from evidence in a liability lawsuit. This piece examines potential barriers to physicians' disclosure of medical mistakes and demonstrates how the underlying problem may actually be rooted in professional norms - norms that will remain outside the scope of law's influence. The article also considers other legal and policy changes that could help to encourage disclosure".