“In Ohio, and other states with similarly broad physician apology statutes, physicians need have little concern, obviously, that their expressions of sympathy, or otherwise commiserating with a patient and/or family members over an adverse income, could be construed as including an acknowledgement of malpractice admissible to a jury,” he says.
However, he adds, in 32 states the general rule of evidence on admissions applies so physicians need to be cautious about what he or she says to a patient or a family member about an unanticipated adverse outcome, or it could be construed as an admission of malpractice admissible to a jury.
Stein believes that if the rationale of the Ohio decision were adopted by other states in interpreting similar statutes, it may provide greater latitude for primary care physicians when discussing unanticipated outcomes of their patients’ medical care.
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“Even under the standard stated by the Ohio Supreme Court, doctors should still exercise extreme caution when discussing unanticipated outcomes with their patients and patients’ families,” he says. “Even though this decision includes within the meaning of the word ‘apology’ acknowledgements by the doctor that a patient’s medical care fell below the standard of care, doctors [in Ohio] should still avoid such acknowledgements altogether and, if they feel they have to say something, focus on a discussion of the unanticipated outcome rather than admissions about the care provided.”
Some jurisdictions have interpreted this principle even more broadly to include protections for admissions of liability from being used as evidence against physicians. Therefore, Sheps says, it’s important for providers to understand the specific law in the states in which they practice and how they may impact liability following a disclosure or apology.