Doctors fear legal risk in saying 'sorry'; calls grow for clearer apology laws

The medical community remains concerned about the controversial “apology laws,” which obligate doctors to explain medical accidents. Legal experts believe that the “fear” of being sued after comforting patients and their guardians must first be addressed.

At a seminar on “Necessity and Problems of the Medical Liability Limitation Act” on Thursday, the main topics of discussion were the misconceptions and realities surrounding doctors' apologies after medical accidents.

The medical accident explanation law is one of the measures to strengthen the medical accident safety net, which the Special Committee on Medical Reform unveiled in March. The Act on Medical Accident Damage Relief and Mediation of Medical Disputes (Medical Dispute Mediation Act) was amended to require medical professionals to fully explain the circumstances of the accident to patients and their guardians in “grave accidents.” Expressions of regret or apologies made during the explanation process will not be admissible as evidence in investigations or trials.

“It is natural for lawyers to express their apologies to their clients in the event of a loss, but doctors are suffering from the fear that apologizing to patients will be disadvantageous in a lawsuit,” said Hwang Jeok-hwa, a former head judge of the Seoul High Court and co-chair of People Making Good Laws, which organized the seminar.

"When lawyers lose a case, they apologize rather than blaming the judge or making excuses. It's a natural and expected behavior. Clients rarely sue lawyers for losing cases,” Hwang said. “I hope that doctors' explanations and apologies can also become natural in the medical field."

The consensus in the seminar was that apologies should not be recognized as “evidence of negligence” in medical malpractice lawsuits, as they are, in general, civil lawsuits. Article 23 of the Civil Conciliation Act stipulates that opinions and statements made in mediation proceedings before litigation cannot be used in subsequent litigation.

"We are supposed to follow the Civil Conciliation Act, which the Medical Dispute Mediation Act does not stipulate. In the first place, it should not have been assumed that a doctor's apology in the mediation process or beforehand was an admission of negligence,” a lawyer attending the seminar said. “A clear provision should be added to prevent doctors' apologies from being used as evidence of negligence in civil and criminal cases to prevent misunderstandings in the field.”

However, the lawyer noted that the medical community's perception of malpractice lawsuits also needs to change.

“The increase in medical malpractice lawsuits is a natural phenomenon of people's growing awareness of their rights,” he said. “If doctors don't recognize this social change and think ‘people sue for things that would have been considered unlucky in the past,’ it's hard to find a point of contact.”

Another lawyer said, “I wonder how much the medical community is doing to prevent medical errors. They can't solve the problem by setting up task forces or blaming patient lawsuits after an accident without having a preventive system.”

The medical community said doctors are not unwilling to apologize, but they are unable to do so.

"The medical field shares the experience of doctors apologizing and then losing in court. As these experiences accumulate, there is a great deal of concern regardless of the authenticity. Even if a doctor wants to apologize to a patient personally, the hospital may prevent them from doing so,” said Kim Seong-geun, spokesperson for the Korean Medical Association (KMA).

"It would be great if the medical community could resolve these misunderstandings and concerns," Kim said. “We hope that a virtuous cycle will be established where doctors can fully explain and apologize to patients, which will reduce lawsuits."

University hospitals have a system for sharing incidents and educating staff. It is difficult for smaller medical institutions to do the same, but the KMA supports related activities, Kim explained.

"Creating a management system that officially collects data and shares cases at the government or medical association level will be very helpful in preventing medical accidents," he added.

Many U.S. states have addressed similar concerns by enacting so-called “I'm sorry” laws, which allow healthcare providers to express sympathy or regret to patients and families following adverse events. These laws ensure that such expressions cannot be used as evidence of liability in court. Supporters of Korea’s proposed legal revisions hope to create a similar environment where doctors can speak openly without fear of legal consequences.