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Legal Pitfalls of Medical Apology Laws

Reprinted from the Second Quarter 2014 issue of Inside Medical Liability magazine, PIAA. Copyright, 2014. www.piaa.us

Victor R. Cotton, MD, Esq., is licensed to practice both law and medicine in the Commonwealth of Pennsylvania and is President of Law & Medicine, an ACCME-accredited provider of medical-legal education.

Pennsylvania recently became the latest state to pass a “medical apology law,” which prohibits the use of certain statements against healthcare professionals in various legal proceedings. In response, many organizations are encouraging physicians to apologize when their patients suffer bad outcomes.

Unfortunately, some of the behaviors they are suggesting are outside the domain of what is protected by the statute and, for that reason, may put physicians in jeopardy. To minimize the risk that this might happen, this article reviews the intricacies of the various medical apology laws.

The greatest challenge to understanding these laws is overcoming the ambiguity in the language used to compose them. The most confusing aspect is their improper use of the word “apology.” In the English language, the word “apology” means “an admission of error accompanied by an expression of regret”.1 There are thus two necessary elements to an apology: an admission of error and an expression of regret.

Unfortunately, in most of the statutes, “apology” is defined as an expression of regret. So within the statutory construct, the word “apology” has the same meaning as the word “sympathy.” Left without a word to define the act of apologizing, the statutes were forced to create new terminology, such as:

apology with the admission of fault” (otherwise known as apology) and,
apology without the admission of fault” (otherwise known as sympathy).

Recognizing and applying this unconventional terminology is essential to proper interpretation of the statutes.

Sympathy laws

The Pennsylvania statute, like most apology laws, covers only apologies that do not contain an admission of fault.2 According to conventional English, then, it is in fact a “sympathy law,”not an “apology law.” It prevents plaintiff attorneys from using expressions of sympathy, empathy, and condolence against physicians in subsequent legal proceedings. The bottom line: although sympathy laws supposedly provide medical and legal benefits, it is doubtful that they have any effect at all.

Supporters of the Pennsylvania law claimed that it would reduce physicians’ legal risk by creating an environment where physicians could freely express sympathy to their patients.3 While expressions of sympathy may have any number of medical and legal benefits, the statute will not accomplish anything unless physicians are currently withholding sympathy out of concern that it will be used against them. In other words, unless sympathy is being pent up because of physicians’ legal concerns, the new protection will not release it, and there will be no corresponding benefit. Unfortunately, there are no published studies suggesting that physicians are withholding sympathy for this reason, and I have never heard a physician express such a concern. So, because the Pennsylvania law is based on an unsubstantiated premise that is probably incorrect, the protection it provides is unlikely to have any medical or legal effect.

The fundamental flaw of medical sympathy laws is that they provide a type of protection that is in fact unnecessary. They prevent plaintiff attorneys from using physicians’ benevolent gestures against them, but attorneys never use benevolent gestures against anyone. Plaintiff attorneys are not interested in demonstrating that physicians are kind, caring, and compassionate. On the contrary, their goal is to portray the defendant physician as uncaring and insensitive, so as to win the favor of the jury. By preventing attorneys from doing something that they would not do, sympathy laws serve no practical purpose. This supposition is reflected in the history of the Pennsylvania law: It passed by unanimous votes in both the Senate and the House.3 If it actually threatened plaintiff attorneys’ livelihood, it is likely that someone would have opposed it.

Apology laws

While most apology laws are nothing more than sympathy laws, seven states (Arizona, Colorado, Connecticut, Georgia, South Carolina, Vermont, and Washington) have statutes that prevent both expressions of sympathy and actual apologies from being used against physicians. 4-10 Although the broader scope of protection might seem like a benefit, physicians who attempt to rely on it are likely to find just the opposite.

There are a number of reasons why this is so. First, for the legal protection to apply, the apology must meet specific conditions. For example, in Vermont, verbal apologies are excluded from evidence, but written ones are admissible.9 Whether a physician who makes a verbal apology that he then documents in the medical record would receive protection is unknown; the statute does not address verbal apologies that are subsequently recorded in writing. In addition, the Vermont and Washington statutes state that the apology must occur within 30 days of the error, or the legal protection is lost.9,10 In South Carolina, the protection applies only to statements made at a “designated meeting,” which must be convened for the specific purpose of apologizing.8 Apologies issued in other settings are not protected.

All of the laws cover statements made to both the patient and his family, but the definition of “family” varies. Some states include grandparents, grandchildren, and adopted relatives in the definition, while others do not. Oklahoma’s statute includes stepfathers, but not stepmothers.11 If a non-covered person is present during the apology, the legal protection is lost, and the statements made at that time could be used against the physician. Some laws require that the apology relate to an unanticipated outcome of medical care,” while others specify some type of “accident.” The end result is a complex web of legalese, which clinicians will need to navigate meticulously, lest they fail to qualify for the legal protection afforded by the statute.

Unfortunately, even if a physician carefully tailors his apology so that it falls within a protected corridor, he is still highly vulnerable. Apology laws cover the physician’s words, but they do not seal the medical record and prevent the facts from being used. As a result, once the physician has “flagged” the error with a confession and apology, the patient can simply use the medical record to prove his case. Although some patients might choose to accept the apology instead, and then “forgive and forget,” the literature suggests that this is far from a reliable phenomenon. Wu12 found that nearly half of all the patients who were told of an error indicated that they would sue, and that an accompanying apology had no effect on their decision.

Not only can these patients use the medical record to prove their case, it is likely that they can use the physician’s admission of error as well. In other words, even with the full protection of an apology law in place, admissions of error can still be used against physicians who offer them. To understand this apparent paradox, it must be recognized that apology laws address whether something is “admissible,” that is, whether it can be used as evidence at trial. However, they do not change the rules of pre-trial discovery. 4-10 As such, during the course of a physician’s deposition, a plaintiff attorney could ask, “Doctor, did you apologize to Mrs. Smith, and what mistakes did you admit to committing?” While this information is not admissible at trial, it is still discoverable during a deposition, and the physician would be required to answer.

Although the attorney could not properly ask this same question at trial (the information is inadmissible), he could ask, “Doctor, do you believe that you made any mistakes during the course of Mrs. Smith’s care and, if so, could you describe them?” Because this is simply a question about what the physician believes, it is permissible. However, with his sworn answer at the deposition in the record and available to the judge, the physician is in a difficult situation. He can either recount his mistakes for the jury and render his case largely indefensible, or he can contradict his previous testimony and potentially commit perjury. In the end, even in situations where a confession of error is inadmissible, it is not really excluded.

An even greater concern, the vast majority of apology laws apply only to “civil” actions (e.g., medical professional liability— MPL—lawsuits). None of the laws apply to “criminal” actions brought by a district attorney, and only Vermont’s law excludes apologies from being used in “administrative” actions brought by a state licensure board.9 As a result, even when an apology law renders certain statements inadmissible in an MPL lawsuit, those same statements could be used against a physician by a hospital credentialing committee, a district attorney, or a state board of medicine. These entities have become increasingly interested in medical errors, and physicians’ concerns about possible prosecution after an error are legitimate.

Finally, most apology laws are only a few years old and have yet to face a true legal challenge. So no one knows how the courts will interpret the ambiguity inherent in many of them.

An Ohio physician recently relied on an apology law and admitted his mistake to a patient. The patient chose to sue rather than forgive; the judge allowed the admission into evidence; and the jury awarded the patient $3 million (which suggests that the jury, too, was unfazed by the apology).

The physician appealed, but the court affirmed the decision, ruling that the Ohio apology law (which specifically stated that it covered “apologies”) did not cover the doctor’s admission of error.13 Since apology laws run contrary to the Rules of Evidence (under which relevant facts are generally admissible), 14 this outcome is not too surprising. It is quite possible that other physicians who rely on these laws may be similarly disappointed, if a court interprets the law in a different way than they did.

Conclusion

Most apology laws are actually sympathy laws, designed to prevent the use of expressed sympathy in legal proceedings against physicians. However, plaintiff attorneys never use sympathy against physicians and there is no evidence that physicians are withholding it because of legal concerns. It is likely that these laws serve no meaningful purpose. Seven states have laws that protect actual apologies, but that protection is riddled with so many holes that it effectively becomes a trap for the unwary physician who relies on it. Organizations that encourage physicians to disclose errors and apologize should be careful to avoid misrepresenting the degree of protection that these laws in fact provide.

References

  1. http://www.merriam-webster.com/dictionary/apology
  2. Benevolent Gesture Medical Professional Liability Act. Pennsylvania
    Senate Bill 279, 2013.
  3. http://abclocal.go.com/wpvi/story?section=news/health&id=9290855.
  4. Arizona Revised Statutes § 12-2605.
  5. Colorado Revised Statutes §13-25-135
  6. Connecticut General Statutes § 52-184d.
  7. Georgia Code § 24-3-37.1.
  8. South Carolina Code of Laws § 19-1-190.
  9. Vermont Statutes Annotated 12 § 1912.
  10. Revised Code of Washington §5.64.010.
  11. Oklahoma Statutes Annotated 63 § 1-1708.1H.
  12. Wu AW, Huang IC, Stokes S, Pronovost PJ. Disclosing medical errors
    to patients: it’s not what you say, it’s what they hear. J Gen Intern Med. 2009; 24:1012-1017 Epub 2009 Jul 4.
  13. Davis v. Wooster Orthopaedics & Sports Medicine, Inc., 193 Ohio App.3d 581, 2011.
  14. Federal Rules of Evidence. Rule 402.