Judge says apologies can't be used in malpractice suits

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The Ohio Supreme Court recently ruled that an apology by a medical provider that includes an admission of liability cannot be admitted as evidence in a civil lawsuit against the provider.

In a 5-2 decision, Justice Sharon Kennedy penned the majority opinion for the case, writing, “a statement expressing apology means a statement expressing a feeling of regret for an unanticipated outcome of the patient’s medical care, and may include an acknowledgment that the patient’s care was substandard.”

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Stephanie A. Sheps, JD, the director of claims for Coverys, a medical liability insurance agency based in Boston, Massachusetts, says court rulings such as Ohio’s serve to underscore the value of communication after an adverse event by protecting physicians from admissibility at trial.

“This ruling should give healthcare providers comfort and reassurance that doing the right thing-helping patients and families understand the adverse event, supporting them through its aftermath and even expressing sympathy-can be done without fear of it being used against them as evidence of negligence,” she says.

Understanding the Decision

Callan G. Stein, JD, a litigation partner in Boston-based firm Donoghue, Barrett and Signal, says the court determined that the Ohio Apology Statute was unambiguous and, thus, applied the ordinary definition of the word “apology” to reach its conclusion.

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Dennis J. Alessi, a member and co-chair of the healthcare law and employment law practices of Mandelbaum Salsburg’s Healthcare Group, Roseland, New Jersey, says the core of the decision is that it prohibits testimony at trial of not only a physician’s expressions of empathy with the patient for an unanticipated, adverse outcome, but also any acknowledgment that the physician’s care fell below generally accepted standards.

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Saying Sorry

Tom Davis MD, FAAFP, a family physician in Washington, Missouri, admits he’s made a number of errors in his 25 years in medicine and is in favor of this ruling as it frees clinicians to use the best liability prevention weapon-an apology.

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“In a world where healthcare is becoming more corporate and less human, it’s a single step toward restoring the human connection of clinician and patient-to the benefit of both,” he says. “The experience has to be face-to-face, human and personal. You have to make a connection.”

Davis says any apology should be done with witnesses around, preferably loved ones and supporters of the patient, plus one other who is neutral to both parties. This is something he learned from his mentors in residency.

“When I screwed up, I came clean as fully and quickly as possible. I did so face-to-face with a full explanation of what went wrong and why, admitted my personal responsibility, described the consequences of my error and what was in my power to mitigate them,” he says. “Not once did any of them file against me.”

Alessi notes that research has shown that a physician who commiserates with his or her patient over such an outcome is far less likely to be sued for malpractice than a physician who does not do so.

“Such empathy also permits the physician to express his or her humanity to the patient, to be true to the profession’s calling to be healing, both physically and emotionally, when the outcome is not what the patient had hoped for, and to assist the patient and the family to accept this outcome,” he says in an email.

Not Just Ohio

Alessi notes that 36 states have enacted what are known as “physician apology statutes,” and the essence of all is that a court cannot permit any testimony or other evidence to be presented to the jury showing that the physician expressed any feelings of empathic or condolences for a patient after an unanticipated, adverse outcome.

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“In Ohio, and other states with similarly broad physician apology statutes, physicians need have little concern, obviously, that their expressions of sympathy, or otherwise commiserating with a patient and/or family members over an adverse income, could be construed as including an acknowledgement of malpractice admissible to a jury,” he says.

However, he adds, in 32 states the general rule of evidence on admissions applies so physicians need to be cautious about what he or she says to a patient or a family member about an unanticipated adverse outcome, or it could be construed as an admission of malpractice admissible to a jury.

Stein believes that if the rationale of the Ohio decision were adopted by other states in interpreting similar statutes, it may provide greater latitude for primary care physicians when discussing unanticipated outcomes of their patients’ medical care.

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“Even under the standard stated by the Ohio Supreme Court, doctors should still exercise extreme caution when discussing unanticipated outcomes with their patients and patients’ families,” he says. “Even though this decision includes within the meaning of the word ‘apology’ acknowledgements by the doctor that a patient’s medical care fell below the standard of care, doctors [in Ohio] should still avoid such acknowledgements altogether and, if they feel they have to say something, focus on a discussion of the unanticipated outcome rather than admissions about the care provided.”

Some jurisdictions have interpreted this principle even more broadly to include protections for admissions of liability from being used as evidence against physicians. Therefore, Sheps says, it’s important for providers to understand the specific law in the states in which they practice and how they may impact liability following a disclosure or apology.