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Should Doctors Say “I’m Sorry” When Things Go Wrong?

Human illnesses and other conditions can be unpredictable. Doctors and other medical professionals do the best they can, but sometimes things go wrong, and patients are injured or even die. When it becomes clear that a patient may not recover, many doctors put up a wall and distance themselves from the case. After all, if the family of the patient ends up suing for medical malpractice, the doctor does not want to provide any information that may be used against him later on.

Interestingly, medical malpractice insurers previously instructed doctors to “deny and defend” against any hint of negligence. Apologizing for poor outcomes was a huge “no-no,” as it could be construed as admitting fault. The insurers reasoned that a patient—or the patient’s family—might use the apology to pursue a medical malpractice suit and attempt to uncover evidence that shows the doctor is at fault for the alleged injuries.

However, patients who suffered injuries at the hands of a doctor often become more upset when the doctor essentially cuts off communication. Therefore, a medical malpractice lawsuit may become even more likely if the doctor does not reach out or discuss the matter with the patient. Because of this, many states began exploring ways to improve physician-patient communication with the goal of reducing the number of medical malpractice lawsuits.

At least 37 states, as well as the District of Columbia, have enacted laws that encourage physicians to apologize to both patients and their families when a patient has been injured. According to these laws, the apology cannot be used against the physician as an admission of liability in a subsequent medical malpractice action. The goal of such “apology laws” is to reduce lawsuits, not to improve patient safety or to allow true and sincere expressions of sorry or empathy. These laws are just another way for doctors and hospitals to avoid responsibility for their actions.

However, the effects of such laws are varied. Benjamin McMichael, a postdoctoral scholar at Vanderbilt’s Owen Graduate School of Management, conducted a study that concluded, “In general, the results are not consistent with the intended effect of apology laws, as these laws do not generally reduce either the total number of claims or the number of claims that result in a lawsuit.”

The nature of the protected apology varies as well. In 30 states and the District of Columbia, partial apologies are protected. A partial apology does not contain admissions of liability for negligence. An additional 7 states protect full apologies, which may contain statements about liability, fault, and mistakes. The seven states that protect full apologies are Ohio, Washington, Colorado, Connecticut, Georgia, Arizona, South Carolina, and Vermont. In these “full apology” states, doctors can even admit they screwed up; so long as they couple such statements with “and I’m sorry,” the admission of fault is inadmissible in court.

A 2017 decision by the Ohio Supreme Court illustrates the point. In that decision, the Ohio Supreme Court held that the full apology protection extends to a doctor’s admission that he did not meet the standard of care, which is essentially a full admission of “negligence.” The court refused to allow the doctor’s statement to be heard by the jury because it was coupled with an apology.

Apology laws do not bar medical malpractice suits

The bottom line is this: even if your doctor apologizes for injuring you and admits a big mistake, you cannot use this apology in an Ohio court. Still, you have the right to pursue a medical malpractice claim against that doctor and to develop and show to the jury other evidence of the doctor’s mistake. Doctors remain liable for injuring their patients and may be ordered to pay medical bills, lost wages, and other damages that stem from medical malpractice.

Our attorneys are compassionate to victims and experienced in medical negligence claims

At The Eisen Law Firm, our firm focuses solely on medical negligence. We have decades of experience handling all types of medical negligence claims and know how to gather evidence to support these claims to ensure you receive the maximum compensation available under the law. To schedule your free consultation, call 216-687-0900 or contact us online today.