Michigan has now joined the majority of states that have enacted an “I’m sorry” law for medical malpractice cases. The statute (MCL 600.2155, effective 4/11/11) declares that statements made by health care providers to express “sympathy, compassion, commiseration, or a general sense of benevolence relating to the pain, suffering, or death of an individual,” to the individual or their close family members, cannot be admitted into evidence in medical malpractice actions as an admission of liability. In other words, the health care provider can acknowledge the suffering of the patient and their family, without risk that it will be used against them.

Lawyers have traditionally discouraged medical care providers from having any contact with the patient when something goes wrong, out of concern that the provider would inadvertently say something that would form the basis of a successful medical malpractice lawsuit. One can imagine how the physician’s well-meaning exclamation, “I can’t understand how I cut off the wrong leg!” would impress a jury. While this might be sound legal advice, it may have actually encouraged lawsuits, as the health care providers’ distance intensified the family’s suffering. I have heard plaintiffs justify their medical malpractice lawsuit with comments like, “He never even called to see how I was doing” – and I’ve heard nurses and physicians lament that they were aching to sympathize with the patient or family but were prevented from doing so.

Such advice is also contrary to Jesus’s teachings. In Matthew’s gospel, Jesus advises that, if you know someone has something against you, you should go to that person and be reconciled to them (Matthew 5:23-25). If someone files a lawsuit against you, you know they have something against you, and the Christian response is to go to that person, rather than staying away from them. Christian practitioners are caught between competing directives—but in the health care industry, this is starting to ease.

This statute allows practitioners to express some sympathy. However, it makes it clear that any expression of culpability accompanying the statement of sympathy will not be protected. So, a practitioner can safely tell a patient, “I’m sorry that you’re still suffering”—that can’t be used as evidence that the practitioner committed malpractice. But if the practitioner adds, “I knew I should’ve counted our scalpels one more time,” that statement is still admissible.

This should arguably assist mediators. Oftentimes, a plaintiff wants an apology but the defendant is reluctant to give it, fearing that, despite the confidentiality of mediation, the apology will be used against the defendant if the mediation is unsuccessful and the case goes to trial. Now, a mediator can assure the defendant that the expression of sympathy or remorse can’t be used against them in court. That ought to free defendants to say what plaintiffs want to hear, and settle more cases, right? Most plaintiffs want more than a general acknowledgement of their suffering, and, even without this statute, can see right through a “hollow” apology. They instinctively know the difference between “I’m sorry that you’re suffering” and “I’m sorry that I caused your pain.”

Peacemaker Ministries recommends that anyone who wants to offer a sincere apology should follow the “7 A’s of Confession.” One of the “A’s” is to Apologize—“I’m sorry.” This statute frees up defendants to say that. But another “A” is to “Admit specifically,” and that statement is still admissible in court to prove liability. The practitioner who wants to make a genuine apology still runs the risk that it could be used against them (although, if the apology is made in mediation, confidentiality will help protect it from admissibility in subsequent legal proceedings).

So I’m not sure this new statute will help all that much. But it’s moving in the right direction, by removing one legal barrier to the dialogue that health care providers need to have with their patients when something goes wrong.