Should physicians apologize in the face of an adverse medical outcome? Or, is it likely that such an apology would only serve to undermine defense arguments in the event of litigation? In fact, the answer depends on the jurisdiction where the incident occurred.
So-called "apology statutes," by now enacted in a majority of states, address the admissibility of medical providers' statements, affirmations, gestures, or conduct expressing apology, fault, regret, sympathy, commiseration, or a general sense of benevolence. Typically, such statutes apply to any civil action or arbitration alleging medical malpractice against a healthcare provider.
Statements generally fall within the purview of "apology statutes" when the expressions or gestures are made by a healthcare provider or the provider's employee to a patient, a relative of the patient, or a patient's healthcare decision-maker. Such statutes generally apply to expressions made orally, through conduct, or in writing, and the scope of the expression has been interpreted to include mention of the patient's discomfort, pain, suffering, injury, or death related to an unanticipated outcome of medical treatment or care.
Most states with apology statutes deem statements or gestures of apology, sympathy, compassion, or benevolence inadmissible as evidence of an admission of liability or as an admission against interest in a civil action.1 Admissions of fault, liability, or negligence, however, may be admissible in certain jurisdictions.2 Where an "apology statute" renders inadmissible a healthcare provider's expression of apology regarding an "allegedly negligent medical outcome for which the provider is being sued," there may lay an exception as to the healthcare provider's "admission of liability or fault."3
Frequently, courts need to conduct a fact-based, case-by-case analysis to distinguish between what constitutes an apology versus an admission of fault or liability.4 In Delaware, physicians' specific references to a "miscalculation," a "mistake," or cutting in the "wrong place" were deemed admissible pursuant to an exception to an apology statute.5
The statements were admissible; they were not offered merely to console or offer sympathy to the plaintiff, but were, instead, characterized by the court as direct admissions of fault or liability.6 A statement that "I am so sorry [for] what I have done," however, was deemed inadmissible, as it constituted a simple expression of an "ordinary statement of apology."7 Moreover, courts may admit portions of letters or statements that contain admissions of fault, even when the statements are coupled with others that may remain inadmissible.8
1 See, e.g., Ariz. Rev. Stat. Ann. §12-2605; Colo. Rev. Stat. §13-25-135; Conn. Gen. Stat. §52-184-d; Ga. Code §24-4-416; Idaho Stat. Tit. 9, Ch. 2, §9-207.
2 See, e.g., Alaska Stat. §09.55.544; Del. Code Ann. Tit. 10 §4318; D.C. Code Ann. §16-2841.
3 Honey v. Bayhealth Med. Ctr., Inc.,2015 Del. Super. LEXIS 28.
5 Id; see also, DeBussy v. Graybeal,2016 Del. Super. LEXIS 616.
7 Honey andDeBussy
8 Strout v. Cent. Me. Med. Ctr., 2014 ME 77.
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