Written By: Scott R. Thomas

You met with the patient.  You explained all the risks of the procedure.  The risks were later spelled out in the consent form and you went over it all again with the patient.  The patient accepted the risks and wanted you to perform the procedure.  You performed the procedure but the results were less than you and the patient hoped for.  Being a stand-up doctor, you explained what happened with the patient.  Genuinely sorry that it didn’t work out as planned, you expressed your sympathy to the patient and the family.  Then you got the summons and Complaint in the mail.  You’ve been sued.  They’ve even quoted—or should I say, misquoted—your apology.  Your colleagues are upset.  Your malpractice carrier is asking questions to see whether your apology affects coverage, given your duty to put them on notice and cooperate.  How can this be happening?

When something bad happens to someone we know, we express compassion.  When a person does something wrong, the natural inclination is to apologize.  You may feel it’s the right thing to do.  You may feel pressure to disclose the facts because of your personal beliefs, the ethical guidance of the American Medical Association, or the requirements of a hospital at which you have privileges.  However natural these feelings are, these statements may have legal repercussions.  Plaintiff lawyers know the power those statements have.  Although these apologies are hearsay, lawyers for patients get them into evidence with the “statement against interest” exception.  They tell the jury, “Why would Dr. Smith apologize if she did nothing wrong?”

In reaction to this, about three out of four states have enacted so-called “Apology Statutes.”  Only a handful of states, however, provide blanket protection for the doctor’s remarks and brand them inadmissible.  Most states try to make a distinction between a statement that is an admission of fault and a statement which is merely an expression of condolence.  Under Ohio Revised Code §2317.43(A), “all statements . . . expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence . . .  are inadmissible as evidence of an admission of liability or as evidence of an admission against interest.”

Legislatures enact these laws because they believe that a rule protecting a doctor’s expression of sympathy promotes the physician-patient relationship after a negative outcome.  Proponents also argue that patients who sue their doctors often say that they didn’t think the physician was candid or honest about what happened, if it was explained at all.  These are all reasonable theories but no study, anywhere, concludes that patients will refrain from suing if a doctor apologizes.

Apologies of the kind protected by statute don’t deter suits.  As Apology Statutes are written by politicians, it comes as no surprise that protected statements have the ring of apologies you hear politicians make: “If anyone was offended by remarks about my opponent’s race, creed, gender, orientation, or ethnic origin, I sincerely apologize.”  These kinds of “apologies” sound hollow because the speaker doesn’t claim responsibility.

This is precisely why protected apologies are problematic in a health-care setting.  The kind of apology envisioned by the statute doesn’t get you very far.  You meet with the patient and the patient’s family and express your heartfelt sympathy.  Fine.  Now come the questions.  “What went wrong?”  “What caused the bleeding?”  “Why did her blood pressure drop?”  “Why did he lapse into a coma?”  People are grateful for the sympathy but they want the details.  In many cases, the details are not an admission of negligence.  No physician is perfect.  Many things can go wrong in a medical procedure that is performed with care that is state-of-the-art.  An adverse outcome is not synonymous with negligence.  If we didn’t acknowledge the possibility of bad outcomes despite superior care, doctors would be forced to perform only risk-free procedures.  Even so, the line between a bad result with proficient care and a bad result caused by substandard care can be a fine one and may be blurred by circumstances.  Be prepared for the possibility that you and your patient’s lawyer will draw that line differently.

In addition, keep in mind where you are.  Your group may have satellite offices throughout the tri-state area.  You may be in Kenwood one day and Covington the next.  Unlike Ohio and Indiana, Kentucky has not enacted any statute to protect a doctor’s expressions of sympathy.  Anything you say to a patient or the family is up for grabs.

Being a doctor doesn’t yet mean “never having to say you’re sorry.”  When your patient has an outcome other than what you intended, however, it pays to be cautious in your explanation about what happened.

If you would like more information about these issues, please contact Scott Thomas.   He welcomes the opportunity to help you navigate these waters.  Scott’s direct line is 859.578.3862.  You can email him at [email protected].  If there is a particular topic you would like to see addressed in a blog, please send Scott an email with your ideas.

Hemmer DeFrank (1)