Can an Apology Be Considered As Evidence for Medical Malpractice? Medical malpractice lawsuits involve medical record review and other processes to obtain relevant evidence. This article examines whether the apology made by a physician could be construed as evidence in a medical malpractice case.
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Medical malpractice lawsuits arise when there has been some form of negligence on the part of the physician or other healthcare provider that led to an adverse patient event. Such lawsuits involve medical record review, with medical malpractice attorneys utilizing medical review service for a comprehensive understanding of the medical aspects of the case. Typically, physicians choose to avoid talking to patients about their mistakes or slipups. However, at present physicians are being encouraged to express sympathy and apologize for errors. Alongside, a number of medical schools and professional societies are encouraging this approach. This is expected to help avert lawsuits but what is the physicians’ take on this matter? Apology Statutes Enacted in Many U.S. States Many doctors fear that their apology may be used as evidence against them in court. Though one cannot be sure that an apology can help avert a lawsuit, it has its merits and factors such as the situation, timing, the state one lives in, and how he/she apologizes have an impact on the success of the apology. Physicians have to focus on expressing their care and concern while speaking about the adverse event and conveying their sympathy. Many U.S. states have passed laws that prohibit apologies from being admissible in malpractice court. Many state statutes however, provide only partial protection for the physician’s expression of sorrow regarding the patient’s situation. A large number of states have no statutory protection at all. So, how can physicians protect themselves against the malpractice risk associated with apologizing? A statement of apology made by a physician signifying that his/her treatment fell below the accepted standards of medical care can have an impact on the jury’s decision that there was malpractice, even if no malpractice had occurred. To avoid any erroneous findings of malpractice by the jury, 36 states have enacted physician apology statutes. These laws hold that a court cannot permit any testimony or other evidence to be presented to the jury that the physician expressed any feeling of empathy or condolence or a patient, who, in spite of the physician’s best efforts suffered an unexpected adverse outcome. In states such as Ohio, with foolproof physician apology statutes that prohibit testimony at trial of not only a physician’s expressions of empathy with the patient for an unexpected adverse outcome but also any acknowledgement that the physicians’ care fell below the generally accepted medical standards, physicians can be at ease when expressing apology or sympathy to a patient who has been hurt.
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However, there are other states that also have enacted physician apology statutes where the law permits admissibility to a jury of a physician’s acknowledgement of fault for the unfavourable outcome. Around 14 states do not have any physician apology statutes. In these states, the general rule of evidence on admissions is relevant. Therefore, physicians practising in these states must be very cautious about what they say to their patients or their family members regarding an unanticipated unfavorable outcome because it could be inferred as an admission of malpractice that can be presented to a jury. Positive Aspects of Expressing Sympathy That said, empathy with patients does have some positive aspects as well. It allows the physician to express his or her humanity to the patient and be physically and emotionally true to their professional ethics. Such risk-taking may become necessary when practising responsible medicine. Studies show that apologizing could lower the risk of a suit, and in states with apology laws cases are settled faster. Claim payouts for most severe medical injuries are seen to fall by 15 to 18%. The problem is that most clinicians are not trained to express sympathy without admitting fault. Physicians often end up saying things to their patients that extend much beyond the facts known at the time. As the investigation progresses and more details emerge, the physician may have to take back or contradict his/her own statements. Such inconsistencies could appear suspicious to a jury. In the words of Don Karotkin, a malpractice attorney with Karotkin & Associates in Houston, Texas, “The initial response to patients or family members should be, ‘I’m sorry. I don’t know exactly what happened and I don’t know exactly how or why, but I will find out promptly and let you know as soon as I get it figured out.” Once the apology is made, the physician should contact his/her malpractice insurer. Most insurers counsel their clients – this counseling could be at the time the adverse event occurs or via an educational session. The Doctors Company, the U.S’ largest medical malpractice insurer says that “Patients have a right to be informed of the medical facts pertaining to their health status and medical treatment. Physicians have a responsibility to provide accurate, timely information to patients and, when appropriate, to the patient’s family members about events that affect the patient’s health status and future treatment needs—including the disclosure of adverse events and outcomes. … Physicians are encouraged to seek guidance from individuals with patient safety and risk management expertise in both the communication and reporting of adverse events.”
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Instead of an apology, physicians could consider mediation as an alternative step. An objective third party mediator educated in medico-legal issues could facilitate the apology and make a positive non-litigious outcome more possible. Ensure that the Apology Is Only an Acknowledgment, Not a Confession An apology should not sound like a confession; it should only be an acknowledgement of the error. The way the apology is done determines its success. It is best to make the apology in the presence of the physician’s insurance company. The decision to make an apology is purely personal. A carefully carried out apology can ease the distress of the physician, while also sending the right message to the patient or family that the physician cares and the mistake was inadvertent and was caused by plausible reasons. As providers of medical review services for malpractice attorneys, we understand that attorneys provide constructive advice to physicians facing a malpractice lawsuit. They stress the importance of risk management education for physicians. Physicians should know how to communicate with patients and their families without making a statement that could be considered as an admission of malpractice. Ideally, at least one witness should be present who is on the physician’s side when he/she speaks to the patient or family members. Clinical records that substantiate that the adverse event was a known, unavoidable complication should be made available. These records can be referred to during the conversation and afterwards in a sympathetic fashion. This patient encounter should be documented and made available at the trial if necessary. To conclude, physicians should be extremely careful in what they do or say, and document what they carefully did or said. This should help prevent getting sued for malpractice.
www.mosmedicalrecordreview.com
(800) 670 2809