"No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions." --Thomas Jefferson to John Tyler, 1804.

Not having to say you’re sorry

It may help to know that the chief lobbyist working on the new Idaho doctor-apology legislation is also one of the key figures, stretching back some years, behind the state’s “tort reform” legislation – attorney Ken McClure.

But that may mean more than one thing.

Here’s the skeptical take. When you get legislation in hand which blocks prospectively important evidence in cases of medical malpractice, as is the case with House Bill 634, now on the House floor, careful consideration is called for. And bear in mind that “tort reform” means limiting the scope of what can be sued about, and for. Is this simply a device to allow malpracticing physicians to slip out of legitimate lawsuits?

That would be the dark view; a reasonable counter view (which McClure clearly notes) is that fear of lawsuits has chilled a great deal of honest discussion between physicians and patients. It has led to all manner of unfortunate results, from dispensing drugs which probably aren’t needed but will serve to cover a doctor’s behind, to an inability to say the simple but highly important words, “I’m sorry.” A great deal of civilization has been lost to our lawsuit-happy ways – a fact no less real than the malpractices that do occur and should be litigated.

When we attended journalism conferences in years past, we often heard a piece of advice from gurus on media litigation. It was this: If you did something wrong, apologize. Very often, that simple response is all someone is looking for, and often it will end the prospect of lawsuits before it begins.

No less could be true in medicine. And that could be helpful all around.

Post Script – Note the medical/legal deal just announced at the Washington statehouse, a component of which is a similar version of the “no-fault apology” provision.

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