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Apologetic Doctors

The Becker Law Firm, LPA

One of the things that makes this nation great is that each state can develop its own laws. Our Founding Fathers believed that federalism would encourage legislative innovation, and would allow people to “vote with their feet”—to move to states which confirm to their personal ideology.

In our website, we attempt to be informative, to teach about medical malpractice and birth injury malpractice, to help parents understand what is expected of their medical providers, and under what circumstances they should seek advice on holding them responsible for causing injuries. We have to paint with a broad brush, sometimes, because each state is different, is governed by different laws, and the outcome of any case could be different between sister states.

One type of law that has received much attention in the legal community over the past few years is apology legisltation. Common sense tells us that if a doctor apologizes to his patient, the patient should be able tell the jury what the doctor said. The doctor is, after all, often admitting fault. Indeed, for most types of cases, this is perfectly admissible—it is called “admission of a party-opponent.” The theory is that a jury can be told about it because a person is not likely to admit to doing something wrong unless it is true, so the statement is trustworthy.

But, many states have tinkered with the admission of party opponent evidence rule for doctors and other health care providers. Here in Ohio, for example, our state Supreme Court recently evaluated the 2004 apology law, Ohio Revised Code 2317.43. Essentially, that law holds that in a medical malpractice case, any statement or conduct expressing apology is inadmissible to prove fault. In Estate of Johnson v. Randall Smith, Inc., the Court was tasked with evaluating a statement by the doctor: “I take full responsibility for this.” The trial judge excluded the statement in accordance with the law, and jury returned a verdict in favor of the defendant medical provider. Is there any doubt about what the doctor meant?

Essentially, the argument is that doctors may want to console their patients. This permits them to “act nicely,” without fear of getting into trouble, later. However, what it really does is give doctors a free pass. They can look like good guys by stepping up and admitting what they did wrong—then when it really counts, they don’t have to admit it at trial. It’s a little bit like having your cake and eating it, too.

As a community, doctors want to encourage their peers to apologize. Studies have shown that patients and patient families are statistically less likely to file medical malpractice lawsuits when a doctor apologizes. Sometimes this creates a bond between doctor and patient, and we can all empathize with someone who has made a mistake and feels awful about it. But do we allow this in any other circumstance? If someone runs a red light and t-bones another driver, do we exclude his statement that “It was all my fault, I’m sorry?” What about the drunk driver who kills a teenager and admits being drunk? No, these laws, in the states where they have passed, show the power and influence of the insurance lobby and the medical lobby. It’s not fair, and it takes important evidence away from the jury.

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If your doctor or medical provider apologized for their actions, be sure to tell your attorney. It may or may not be admissible, but it will help your medical malpractice lawyers to evaluate your case, and they can tell you whether it will likely be admissible in court. For more information on your state’s laws, contact our medical malpractice attorneys at (440) 252-4399 or online for a free consultation.

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