Know how state statutes work before apologizing for an error
by Patrick T. O’Rourke and Kari M. Hershey
Like many people, we like to sing while secure in the anonymity of our cars. This morning, one of us was wailing along with Elton John as he sang “Sorry Seems to Be the Hardest Word”:
It’s sad, so sad
Why can’t we talk it over
Oh, it seems to me
That sorry seems to be the hardest word.
That verse frames a critical legal question physicians regularly encounter: how to communicate with patients after an unexpected outcome. More precisely, should a physician apologize to a patient who suffers complications because of that physician’s treatment?
Traditionally, after a patient suffered a complication, defense lawyers were reluctant to allow the physician to express apologies or regret. The defense lawyer feared the apology would be treated as an “admission against interest.” In other words, the defense lawyer wanted to prevent a plaintiff’s lawyer from someday arguing that the physician’s apology was an admission of negligence or wrongdoing.
But the lawyer’s strategy fails. The patient wants the physician to apologize for an error. In fact, the patient distrusts a physician who does not admit errors.
‘‘Although a physician may wish to tell a patient when he has made a mistake, lawyers often order doctors to say nothing,’’ wrote University of Florida law professor Jonathan R. Cohen in the Southern California Law Review.1 “The physician’s silence may then trigger the patient’s anger. This alienation may then prompt the patient to sue.”
These observations are consistent with studies demonstrating that patients are far less to sue when provided with a full explanation and apology.2
Certainly no physician wants to make a statement that a plaintiff’s lawyer will use against him in court. But the same physician rationally wants to take any steps that might prevent the patient from feeling as though he or she needs to consult with a plaintiff’s lawyer. So, what’s a physician to do when caught between the hospital’s lawsuit-fearing attorney and a patient who expects his doctor to communicate with her honestly and forthrightly?
Fortunately, several state legislatures have recognized this tension and passed legislation that encourages physicians to apologize without facing the prospect that a plaintiff’s lawyer will argue that the physician apologized only because he knew he did something wrong. An example best illustrates how such “I’m sorry” statutes work.
Dr. Smith is treating a 22-year-old patient, John Elway, for a fractured fibula. Dr. Smith sees no signs of neurological compromise while the patient is in a cast. After the cast is removed, it appears the patient has lost function in the leg because the cast was too tight. The patient was a star college athlete who was expected to be drafted into the NFL, but now likely won’t be drafted. Dr. Smith tells the patient: “It’s my fault this happened. I’m really sorry that I didn’t pick up on this sooner.”
Does Dr. Smith’s statement come into evidence in court? Does part of it? The answers probably depend upon which state’s apology statute is applied. Massachusetts was one of the first states to pass an apology statute. It reads:
Statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to the person or to the family of such a person shall be inadmissible as evidence of an admission of liability in a civil action.
Significantly, the Massachusetts statute applies to people “involved in an accident,” which might imply that it is limited to automobile accidents or workplace accidents. The Massachusetts statute prevents this limited construction by providing a broad definition of “accident,” including any “occurrence resulting in injury or death to one or more persons which is not the result of a willful action by a party.” This definition would encompass ordinary medical negligence.
It would seem clear that the statute would protect Dr. Smith if he simply stated: “I want you to know how sorry I am this happened. I feel awful that you experienced this complication.”
But if Dr. Smith said, “It’s my fault this happened,” would the Massachusetts statute protect Dr. Smith? That’s a much harder call. Saying “It’s my fault” is technically not an expression of “sympathy or a general act of benevolence.” There no clear answer under Massachusetts law. But we believe the result would probably depend on whether the judge hearing the case thought this statement occurred during an overall act of apology.
The answer is clearer in California. That state’s apology statute reads:
The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section.
California draws a clear distinction between “the portion of statements ... expressing sympathy or a general sense of benevolence” and “a statement of fault.”
In our scenario, the jury would almost certainly be able to hear Dr. Smith’s statement, “It’s my fault this happened.” Critics of California’s law believe it creates too narrow a window for physicians to believe that plaintiff’s lawyers will not use their apology against them in a lawsuit.3
While Dr. Smith’s statement is likely to come into evidence in California, it’s also clear the opposite would occur in Colorado. Colorado’s apology statute, which specifically applies to medical malpractice actions, reads:
In any civil action brought by an alleged victim of an unanticipated outcome of medical care ... any and all statements … expressing apology, fault, sympathy, commiseration, condolence, compassion or a general sense of benevolence ... shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.
Because Colorado’s statute specifically renders statements of “fault” inadmissible, a jury would not be able to consider any of Dr. Smith’s statements made during the course of his apology. Colorado’s law provides the physician with the most protection. Critics of Colorado’s law believe it’s unfair for physicians to admit fault to their patients in the hospital, then deny liability after the patient files a lawsuit.
Twenty-six other states have passed apology statutes; each works a bit differently. The choice of words matters. Legally, there is a big difference between a physician telling a patient, “I’m sorry about your pain” or saying, “It’s my fault you’re in pain.”
While apologies are valuable and important in relationships of trust—including the relationship between physicians and patients—we suggest you consult an experienced lawyer when crafting an apology to make sure it conveys your sympathies without opening a door to liability. TH
Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, Denver.
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