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Doctors say they need protection to apologize

Consumers, insurers, and regulators are pushing for openness about medical errors, but Massachusetts doctors believe they need a change in state law so what they say cannot be used against them in a court of law.

The Massachusetts Medical Society, which represents 18,000 of the state's physicians, is lobbying legislators for a special legal exemption for any doctor who apologizes to a patient and admits making a mistake: The statements could not be used as evidence against the doctor in a medical malpractice case.

Even though patient safety leaders are encouraging doctors to say "I'm sorry" as a way to improve relationships between them and their patients, many physicians avoid these discussions because they fear being sued, said Dr. Alan Woodward, a past president of the medical society and an emergency medicine physician in Concord.

"There's a culture of secrecy," said Woodward, who has been meeting with legislators to advocate for a change in the law. "The defense attorneys tell you you can't even talk to your spouse. That anything you say to anyone in any environment will be used against you. We're trying to reverse that culture."

The medical society supports a bill filed by Senator Robert A. O'Leary, Democrat of Barnstable, which would make any acknowledgement of error by a physician inadmissible in court.

A bill proposed by Senator Richard T. Moore, Democrat of Uxbridge, would create a "Health Apology Pilot Program," which would make statements of guilt inadmissible only for doctors and hospitals that promptly acknowledge and apologize for mistakes and agree to offer injured patients "fair settlements" that would have to be negotiated with the patient's attorney.

The Legislature held a hearing on Moore's bill last month; a hearing date has not been scheduled for O'Leary's legislation.

The state's trial lawyers oppose giving any doctor a special exemption.

In Massachusetts now, general expressions of sympathy when someone is injured, be it in a car accident or a hospital, are not allowed as evidence in personal injury lawsuits.

"If I get out of my car and say, 'Are you OK?' or 'I'm sorry you're in pain,' that is not admissible," said Paul Leavis, president of the Massachusetts Academy of Trial Attorneys. "If I get out of my car and say, 'I'm sorry I rear-ended you,' that is admissible."

The rules should be no different for doctors, he said. Otherwise, a doctor could admit his guilt to a patient at the same time a jury finds him innocent. "If they're responsible for causing harm, they should be held responsible," Leavis said.

The battle is being fought across the United States. Four states - Arizona, Colorado, Connecticut, and Washington - have approved broad laws that allow doctors to admit fault without worrying about their admission being used in court, said Dr. Thomas Gallagher, an internist and professor at the University of Washington in Seattle who studies the issue.

It is unclear how often doctors' apologies are used against them in malpractice lawsuits. Executives at ProMutual Group and CRICO/RMF, the state's largest malpractice insurers, which encourage doctors to be honest with patients, said they have never seen a plaintiff's lawyer use such statements as evidence. Some patient safety leaders believe this is because patients don't sue doctors who are honest with them about what went wrong.

But, Almor Afonso, vice president of claims at ProMutual, said the reason could be that "doctors don't feel comfortable having these conversations because they have no protections."

"Doctors are very confused," said Dr. Tom Delbanco, an internist at Beth Israel Deaconess Medical Center who recently made a film, "When Things Go Wrong, Voices of Patients and Families. "Some [people] tell them to open their hearts and spill the beans. Others tell them to keep their mouths shut. It depends on the lawyer."

A change in the law, he said, would help clear up the confusion.

Liz Kowalczyk can be reached at kowalczyk@globe.com.

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