Kentucky Senator Pushes Apology Bill to Reduce Medical Malpractice Claims
In the latest episode of Healthcare Matters, we speak with Kentucky State Senator Ralph Alvarado, MD. Senator Alvarado has twice introduced a measure to create an Apology Law in Kentucky, which would allow Kentucky physicians and healthcare workers to apologize in the event of an adverse medical outcome without it being admissible in court. 36 states already have similar laws in place. Click above to listen to Senator Alvarado explain the importance of apology laws, drawing from examples in his own practice.
Senator Alvarado is a practicing physician with KentuckyOne Medical Group. First elected in 2015, he is the first Hispanic to serve in the Kentucky General Assembly, and was a guest speaker during the third night of the 2016 Republican National Convention.
Mike Matray: Hello, and welcome to Healthcare Matters, the internet television program that explores the intersection of medicine and the law. I’m your host Mike Matray, Editor of the Medical Liability Monitor. Today we’ll be speaking with Ralph Alvarado, who is a practicing physician and senator for Kentucky’s 28th District. Last year, Senator Alvarado introduced Senate Bill 31, legislation for implementing an apology in medicine law for the Commonwealth of Kentucky. SB 31 did not receive a vote last year, but Senator Alvarado reintroduced the bill this year as Senate Bill 85.
Apology in medicine laws, which prohibit certain expressions of sympathy, condolence or apology related to the disclosure of adverse medical outcomes from being admissible in a medical malpractice lawsuit are not new. 36 states have already enacted their own versions of apology legislation. Supporters of apology in medicine laws argue that these disclosures improve the doctor-patient relationship and reduce the frequency of medical liability claims. Welcome to Healthcare Matters, Senator Alvarado.
Senator Alvarado: Thanks, Mike. I appreciate being here.
Mike Matray: We’re here today to discuss your Senate Bill 31 which would authorize medical providers to express sympathy for adverse outcomes without the expression being admissible within a medical malpractice trial. How did you get involved in spearheading this bill and where is the bill currently in the legislative process?
Senator Alvarado: You know, well, the idea of the bill, Senate Bill 31, for us this year, and it was the first one that had been filed in Kentucky. You’re right, I think 36 other states currently have this kind of law on the books. There was this physician, Dr. Curtis Cary, who works at the University of Kentucky. He and I both served on the governor’s council for the American Colleges of Physicians. We’ve been involved in quite a few things from lobbying our legislators in Congress up in D.C. regarding medical issues. He and I discussed this concept about two years ago. He’s pretty passionate about trying to get this done and so he approached me last year about it. I did some research on it and found that even the VA Medical Center in Lexington had used this kind of standard procedure, apologizing if there had been…even for things like errors in medicine. They apologize. They have really reduced a lot of their malpractice rates. I met a lot of patients and families who were just appreciative of that forward conversation between the doctor and the family.
And so looking into that, knowing that other states had implemented it, really, the biggest thing I think that often affects a lot of malpractice cases is just communication. I think as physicians, in Kentucky in particular, it’s a very bad legal climate here. We have no tort reform. We have nothing like review panels or caps on medical damages and physicians here are often nervous and it affects the style of practice for a doctor. So we thought if we could encourage communication between doctors to at least say, “I’m sorry,” if the patient has a bad outcome, if the patient expires. I think a lot of doctors are scared just to tell their patients and their families, “Look, I’m so sorry for this outcome.” Not acknowledging guilt, not acknowledging anything was done wrong, but sometimes you can do the right thing and still get a bad outcome out of it.
And so if physicians are willing to almost humanize themselves and let those patients know that it often helps calm fears, families feel like the doctors are more open, and to encourage their communication’s going to help reduce lawsuits over all. So that was the hope of getting this done. It went through committee on the Senate side. It passed the committee. And better, it passed the Senate. And then, when it got to the House, it got put in to the judiciary committee and it sat there and it’s not going to move forward unfortunately. We have a lot of our trial lawyer friends who don’t like this kind of legislation and they are unfortunately in control of the House Chamber. Speaker of the House is a trial lawyer, as is the head of the judiciary committee here in the House. Unfortunately, it didn’t move beyond that but we’re hoping that once we start this process, we can continue to refile it. It will often gain steam and have a chance to pass in the future.
Mike Matray: Have you had a personal experience in your medical career where you had wanted to express condolence but perhaps felt that doing so could open you to liability?
Senator Alvarado: No. You know, I’m a primary care doc and I still do my own hospital work. I’m kind of a dinosaur in that stuff anymore. I still take care of my own folks and we’ve had patients where we’ve done everything properly, and a young patient and an unexpected death. It bothered us. I know my partner and I…there’s one in particular I can think of that I’m still traumatized by it, really. A young man, 35, kind of a rapid, within a week, kind of a rapid decline in the hospital and expired. I remember being there with his code and we ran it, did everything right. Having to come back afterwards to a grieving wife with a five and a three-year-old to say…and his parents, all of which were patients of mine…and to say, “I’m so sorry. I did everything I could. I don’t know what happened.” We asked for an autopsy, and the autopsy, inconclusive. It could not determine the cause of death. That still bugs me to this day, that case, and that will probably carry me forever because I don’t know what happened. I don’t know why this guy died. But I remember distinctly offering that to this family and saying, “I’m sorry.” And they knew we did everything we could so there was no adverse outcome. They didn’t feel like they needed to call a lawyer, or do anything wrong. We didn’t do anything wrong. But those are the kind of moments where I remember it’s something that you build a relationship with your patients, you feel comfortable at least expressing that.
But, I think a lot of our hospitalist physicians…those people I see every day in clinic, I continue to see them in clinics since that experience almost 12, 13 years ago. But there’s hospitalists that take care of these folks who have no relationship. So when someone comes in and has an outcome like that, they’re going to be scared to say, “I’m sorry,” because they don’t know them that well and frankly, they’re scared just to have those words come out. So for me personally, it hasn’t been an issue but I know that if I put myself in the position of my colleagues, who might have a one-time encounter. Like in an ER physician or a hospitalist, they don’t have that same comfort level to know these folks. And there’s not that trust that patients will have back with that doctor either. So I think that’s what I’m looking at it more is people that are in that situation where there isn’t that relationship to begin with, it’s more difficult to say that you’re sorry.
Mike Matray: Dr. Alvarado, it’s been an enlightening conversation and a pleasure to have you on Healthcare Matters. I hope you’ll come on our show again.
Senator Alvarado: Any time, I’d be happy to do it. Thanks so much, Mike.