One of the better human traits is the desire to express sympathy for an individual who is suffering and in pain. This desire is never more present than with a physician wanting to commiserate with a patient who, despite all the physician's best efforts, has had an unexpected adverse outcome. The conundrum for physicians is how they can express their humanity in this situation without incurring the risk of the patient subsequently attempting to use the physician's statement as evidence of malpractice in a lawsuit.
Some states have addressed this situation by passing specific statutes that prohibit the admission into evidence at trial of a physician's expression of sorrow over the patient's plight. Many of these statutes provide only partial protection for such expressions, and there is a large number of states that have no statutory protections at all. This article addresses what physicians need to know to protect themselves against this risk depending on the law, or the lack thereof, in their state.
In all United States courts, there are rules of evidence that regulate what testimony, or other evidence, can and cannot be presented in a jury trial, including a medical malpractice case. These rules uniformly permit testimony to a jury of an "admission" made by a party to the lawsuit during the course of events upon which the lawsuit is based.
For our purposes, an “admission” can be defined as any oral statement by the defendant that is contrary to, or otherwise at odds with, the defendant’s defenses of no wrongdoing, and that actually supports the plaintiff‘s claims of such wrongdoing. Specifically, with a physician in a medical malpractice case, an admission would be any statement that his/her treatment of the patient fell below the accepted standards of medical care.
Obviously, such a statement by a physician can have a nearly determinative impact on a jury's decision that there was malpractice, even when, in fact, no malpractice had occurred. This can easily result in a situation where, for example, the physician did not believe that he or she had engaged in malpractice, did not intend to make any statement that they had, the statement the physician did make was misinterpreted, all the objective facts were of no malpractice and yet the physician is found guilty primarily because the statement was presented to the jury.
To avoid erroneous findings of malpractice in these types of situations, 36 states have enacted “physician apology statutes”. While there are a fair number of differences between these statutes, the essence of them all is that, as a matter of state law, a court cannot permit any testimony, or other evidence, to be presented to the jury that the physician expressed any feelings of empathic or condolences for a patient who, despite the physician’s best efforts, had an unanticipated, adverse outcome.