One of the first lessons we are taught growing up is to say, “I’m sorry.” We are taught to say, “I’m sorry,” when we hurt someone, when we see someone hurting, or when we make a mistake.
The older we get, the less likely we are to apologize or admit fault. In some instances, we may not apologize because we fear being sued. This is especially true for physicians who may fear malpractice lawsuits.
In some states, expressions of condolences or apologies to patients or family members may be admissible in court as evidence of wrongdoing or guilt in medical liability cases. When something goes wrong, it is natural for doctors or physicians to want to apologize or express condolences to patients and family members. However, most medical professionals are advised against making such statements. The fear is that the statement may be used against the physician if there is a lawsuit.
States have attempted to ease this fear by passing “apology laws.” However, these laws remain unclear and their intended effects may hurt both patients and doctors. A clear understanding of how and when to apologize, as well as the possible effects of the apology, is important to both patients and physicians.
What Are Apology Laws?
In the early 2000s, physicians faced a growing number of malpractice lawsuits. In an effort to reduce litigation expenses and medical liability lawsuits, state legislators and policymakers began passing apology laws. These laws exclude expressions of sympathy, condolences, or apologies from being used against medical professionals in court. In passing these apology laws (also known as “I’m sorry” laws), proponents believe that allowing medical professionals to apologize can reduce medical liability litigation.
According to the National Council of State Legislatures (NCSL), 39 states, the District of Columbia, and Guam have provisions regarding medical professionals making apologies or sympathetic gestures. Of these states, 6 states have provisions that specifically relate to accidents.
Apology Laws Create Complex Litigation
Ohio is one of the many states with apology laws. In 2004, Ohio enacted its Apology Statute, R.C. 2317.43. Seven years after its passage, Michael S. Knapic, D.O., an orthopedic surgeon in Wooster, Ohio, sought protection under the Ohio law when he was sued for the wrongful death of his patient. The patient’s family testified that after the fatal surgery, Dr. Knapic told them that he had nicked an artery and that he took full responsibility for it. Dr. Knapic’s statement was admitted as evidence and led to a $3 million judgment against him. The court found that the language in the Ohio apology statute protected “pure expressions of apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence, but not admissions of fault.”
However, a few years later, another Ohio doctor was sued and the court came to a different conclusion, excluding the statements of Rodney E. Vivian, M.D. made to a patient’s family members. The patient had been under Dr. Vivian’s care when she attempted suicide and shortly thereafter died. Her family sued. A jury returned a verdict in favor of Dr. Vivian, concluding that he was not negligent in his assessment and care of the patient.
The family appealed, arguing that Dr. Vivian’s statements should have been admissible. The Ohio Supreme Court determined “apology” under R.C. 2317.43, meant a “statement that expresses a feeling of regret for an unanticipated outcome of the patient’s medical care and may include an acknowledgement that the patient’s medical care fell below the standard of care.” On this reasoning, the Ohio Supreme Court held Dr. Vivian’s statements were protected under Ohio’s apology statute and were inadmissible at trial as evidence of liability. Now, a physician’s apology may include an admission of fault and still be protected under Ohio’s apology law.
