The Synergy of Early Offers and Medical Explanations/Apologies

Christopher J. Robinette[*]

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Introduction

Medical malpractice law has been subjected to strong criticism by both medical and legal commentators.[1]  It has been challenged as inefficient,[2] inaccurate,[3] and even counterproductive.[4]  Although many reforms have been proposed, most tend to benefit one group—either physicians or patients—to the exclusion of the other.  Professor Jeffrey O’Connell’s “early offers” proposal provides a reform of the system that is beneficial to plaintiffs, defendants, and society as a whole.[5]  Although some attention has been paid to combining early offers with explanations of the incident[6] or with apologies,[7] the idea has never received a focused analysis.  Recent scholarship on explanations and apologies allows greater insight into the role they play in conflict resolution, and their importance to an early offers proposal in the field of medical malpractice.  This Essay considers such scholarship and explores the advantages of combining early offers with explanations of the incident and/or apologies.

Keeping the Label Out of the Case

Mark Herrmann[*] & Pearson Bownas[**]

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Introduction

The FDA approves prescription drugs and medical devices for only the specific uses indicated in the product labeling that the manufacturer submits in the approval process.  A physician may determine, however, that a use not indicated in the FDA-approved labeling—an “off-label” use—would benefit a patient.  This Article argues that in medical malpractice cases involving an off-label use, the product’s label should not be admitted as evidence of either the standard of care or the physician’s alleged breach of that standard.