LSAT Practice Test 8

Passage A

When a medical treatment goes wrong, patients and families frequently say that what they wanted most, at first, was an acknowledgment and an apology. Yet physicians have long been advised by insurers and counsel to say nothing that might later be read to a jury as a confession. The resulting silence, many injured patients report, is what transforms disappointment into suspicion, and suspicion into a determination to sue. A number of jurisdictions have responded by enacting apology statutes, which provide that a health-care provider's expression of sympathy or regret following an adverse outcome is inadmissible as evidence of liability.

The rationale is straightforward. Litigation is a costly and adversarial means of addressing an injury, and if a substantial share of lawsuits is driven by the perception that the provider is indifferent or concealing something, then removing the legal penalty for candor should reduce the number of suits. The statutes also serve values beyond economy. A physician who can express regret without fear is better able to remain in an honest relationship with a patient, and the patient is spared being treated as an adversary, by the very person who treated her, at the moment of greatest vulnerability. Where hospitals have paired such statutes with programs of early disclosure and prompt offers of compensation, they have reported fewer claims and faster resolution. The law should encourage, rather than penalize, what decency already requires.

Passage B

Apology statutes rest on an appealing premise, but most of them protect something less than an apology. The typical statute shields expressions of sympathy—"I am sorry this happened to you"—while leaving admissions of fault fully admissible. A physician advised under such a statute will learn to say the first and avoid the second, and the injured patient may well hear in the careful phrasing exactly the evasion the statute was meant to dispel. An apology that withholds responsibility is, to the person receiving it, often worse than none.

A few jurisdictions protect admissions of fault as well. These statutes at least permit a genuine apology, but they raise a different difficulty. Where a provider has candidly acknowledged an error, the law now forbids the injured party to place that acknowledgment before the tribunal charged with determining whether an error occurred. The statute thus asks the patient to bear part of the cost of the provider's candor, and it does so in the very proceeding meant to make her whole.

None of this means that apology is unimportant. The reported successes of early-disclosure programs are real, but they come from institutions that committed to candor and compensation together; the statute was at most a modest contributor. If the aim is fewer suits and more honest dealing, legislatures would do better to support such programs directly than to rely on rules of evidence to produce a change of heart.