In the 32 states that permit the admissibility of physician acknowledgments of below-standard treatment, physicians need to be educated in risk management on how to commiserate with patients and their families without making any statement that a court would consider as an admission of malpractice. Fortunately, because such a statement can have a nearly determinative effect on a jury's decision, courts will generally only permit the admissibility of a clear and unequivocal acknowledgment that the physician’s treatment of the patient was below standard. This provides at least some protection in these 32 states from physicians having innocent, but arguably highly prejudicial statements, being admitted against them, but nothing substitutes for good risk management training on how physicians should handle what they say to patients and their families in these situations.
Besides what to say, how and when to say it and what not to say, a good risk management program also addresses other aspects of how to handle situations of unanticipated adverse outcomes. These include: having at least one witness present who is on the physician’s side when he/she speaks to the patient and/or family members; having available the clinical records that substantiate that what went wrong was a known, unavoidable complication; referring, in a sympathetic fashion, to these records during the conversation and afterward, having the physician and his/her witness document in the clinical record who said what, and what otherwise occurred, during the conversation. Placing the notes of this encounter in the clinical record should ensure their admissibility at trial, if necessary.
In the Stewart case, there was no such documentation, and the court noted that there was irreconcilable testimony by different witnesses of what Vivian had said. Without the physician apology statute, this would have resulted in testimony of both the plaintiff’s and Vivian’s version of the conversation and a finding of no malpractice by Vivian would have been dependent on the jury believing his version. Vivian was saved from having to rely on the jury only because of the wide breath of Ohio’s statute. In the 32 states that do not provide this protection, a physician significantly aides his/her defense by having documentation in the clinical record of the patient encounter that substantiates that the physician, while making sympathetic statements, did not make any acknowledgement of below standard care.
As with so much in medicine, being careful in what you do (or in this case what you say), and then documenting what you carefully did or said, is the golden rule for keeping the plaintiff’s malpractice attorneys from your door.